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President Donald Trump is asking the Supreme Court to reconsider two recent defeats — requests the court grants, at most, “once in a blue moon,” according to one legal expert.
Trump announced on Wednesday that he would seek a rehearing “IMMEDIATELY” of the court’s birthright citizenship decision.
Separately, his lawyers have asked the justices to reconsider his appeal of the $5 million judgment awarded to writer E. Jean Carroll after they declined to hear the case last month. T
he Supreme Court allows losing parties to seek a rehearing, though it rarely grants such petitions.
“I’d be pretty shocked if either of these requests succeed, especially the birthright citizenship one,” Stephen Vladeck, a professor at Georgetown University Law Center, told Semafor, noting that the last time the Supreme Court granted a rehearing on an argued case was in 1965.
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Aaron-Andrew P. Bruhl, a professor at William & Mary Law School, similarly said the birthright citizenship petition faces “close to zero” odds.
“After the parties’ briefs, the amicus briefs, oral argument, deliberations, and the exchange of opinions, such a change of heart is exceedingly unlikely,” Bruhl told Semafor.
Trump filed petitions for rehearing in two cases, but they face different procedural hurdles.
The birthright citizenship decision was decided on merits after full oral arguments, while the Carroll petition asks the court to reconsider its decision to not hear the case, known as a denial of certiorari.
That distinction matters, Vladeck said. Rehearing requests relating to denials of certiorari are “granted once in a blue moon,” but rehearing after a full merit decision is essentially unheard of.
“In both contexts, someone in the majority has to have changed their mind. That can happen with certiorari if, for example, there was some intervening development. But it’s rare there, and unheard of on the merits,” Vladeck added.
Trump’s lawyers argue rehearing is warranted in the Carroll case because they intend to file a separate appeal raising presidential immunity issues in related litigation. But Vladeck said even that argument faces long odds.
“It’s not unheard of for a litigant to seek rehearing,” he said. “But there’s a pretty big gap between asking for it and getting it.”
Fred Smith, a Stanford Law professor, agreed, saying that while filing a petition is not unusual, what stands out in this case is “a litigant, let alone a sitting president, publicly announcing a rehearing campaign as though it were a viable path to reversal.”