Yesterday, the US Supreme Court announced a schedule change for Gloucester School Board v. G.G., which would push the due date for respondent's merits brief as far back as Febuary 23, 2017. The website SCOTUSBlog notes that:

under the revised schedule it would not be slated for oral argument until the court’s March sitting (which begins on March 20) or possibly even the April sitting (which begins on April 17) – increasing the chances that a ninth justice may have taken the bench by the time the case is argued.

Is there any rule regarding how late in a case a new justice can join tp participate in the decision?

  • 2
    No, there isn't. For example, Kagan recused herself from several cases because she or her office had worked on them when she was solicitor general, not because of the timing of her appointment to the court.
    – phoog
    Dec 8, 2016 at 14:26
  • Are you asking about federal judges in general, or Supreme Court justices in particular? They don't necessarily have the same practices. Dec 8, 2016 at 15:36
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    For SCOTUS, my understanding is that what matters is not the filing of the briefs, but the timing of oral argument. Typically justices won't participate in a case if they weren't on the court during oral argument (since they wouldn't have had an opportunity to ask questions, etc). I don't know if this is a written rule or just standard practice. Dec 8, 2016 at 15:37
  • 1
    @NateEldredge that seems to fit with the quote at least, since it says "may have taken the bench by the time the case is argued", implying that that has some significance.
    – Aidan
    Dec 8, 2016 at 16:16

1 Answer 1


The custom, as I understand it, is that a justice does not participate in cases unless that justice was present for oral argument. (I am not sure if this is firm enough to be called a rule.) In some instances, cases have been re-argued to that an absent justice could participate. This situation most often occurs when a case is deadlocked 4-4 that was argued before a new Justice was seated. In that situation, if there is no other reason for the new justice not to participate, the Court may well order the case to be re-argued, usually in a later term than the original argument. When Justice Black dies and Justice Harlan resigned, a number of cases scheduled for argument were postpoened until new Justices were seated (these proved to be Justices Powell and Rehnquist). See The Brethren by Woodward and Armstrong, p 185.

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