In connection with the grant of certiorari today in the SCA Hygiene case, the question must be asked: Precisely why did the appellate tribunal issue a badly split en banc 6-5 decision, sure to stimulate Supreme Court interest, when the appellate tribunal could have simply changed its procedural vote for certiorari and denied en banc review?
The Supreme Court May Revote Cert. Even after a Merits Argument: There is nothing procedurally wrong with denying en banc review after it has once been granted. Thus, for example, the Supreme Court can even revote certiorari after a merits argument has taken place as happened in a patent case, Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27 (1993). Thus, the Supreme Court is free to revote certiorari even after a merits hearing (as in Izumi Seimitsu) and thus dismiss an appeal. See also, e.g., City of San Francisco v. Sheehan, 135 S.Ct. 1765, 1769 (2015)(Alito, J.)(“[W]e dismiss the first question as improvidently granted.”); Kingsley v. Hendrickson, 135 S. Ct. 2466, 192 2479 (2015)(Alito, J., dissenting)(“I would dismiss this case as improvidently granted.”); Boyer v. Louisiana, 133 S.Ct. 1702, 1702 (2013)(Alito, J., joined by Scalia, Thomas, JJ., concurring in dismissal for improvident grant of certiorari); Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1435 (2013)(Ginsburg, Breyer, JJ., joined by Sotomayor, Kagan, JJ., dissenting)(“This case comes to the Court infected by our misguided reformulation of the question presented. For that reason alone, we would dismiss the writ of certiorari as improvidently granted.”).