The Supreme Court operates under two closely guarded numerical traditions: the Rule of Four, which requires just four votes to accept a case for review, and the Rule of Five, which demands five votes for a majority opinion, a stay, a judgment, or emergency relief. This arithmetic creates a clear tension: a minority can place a case on the docket, but a majority controls the outcome. Yet what if a smaller minority—a bloc of just three justices—could meaningfully shape the Court’s procedural agenda? A compelling new proposal makes exactly that case, urging the Court to adopt a series of “Rules of Three” designed to empower the minority on procedural matters while preserving the majority’s control over substantive outcomes.
This reform agenda arrives at a moment of institutional introspection. With the Court’s merits docket shrinking to roughly sixty cases per term—down from about one hundred just two decades ago, and more than one hundred and fifty when Chief Justice John Roberts clerked—questions about how the Court selects, schedules, and resolves cases have taken on renewed urgency. Critics increasingly describe the emergency or “shadow” docket as a parallel system where fast-moving applications receive scant deliberation. Proponents of reform believe the solution lies not in sweeping structural changes, but in recalibrating the internal voting rules that govern the Court’s daily operations.
The core trade-off is explicit: the minority would gain guaranteed procedural leverage, while the majority would retain its substantive advantage. For the plan to work, both sides must buy in completely. The chief justice would propose the rules and help enforce them, but adoption would need to be unanimous, much like the Court’s recent Statement of Ethics Principles and Practices. The minority would trade its ability to obstruct for a reliable set of procedural tools, while the majority would trade absolute procedural control for a more predictable path to substantive victories. This is a delicate bargain, but one that could restore a measure of balance and collegiality to a Court increasingly strained by ideological polarization.
The Shrinking Docket and the Limits of the Rule of Four
The Rule of Four has long been the Court’s gateway. Four votes to grant certiorari is all it takes to force a case onto the merits docket, even if five justices would prefer to let the lower court’s decision stand. The rule is designed to ensure that a substantial minority of the Court can demand review of important questions, preventing the majority from ignoring issues it would rather avoid.
That design, however, has weakened in practice. Every term, one, two, or three justices dissent from denials of certiorari in scores of cases. On the left, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson frequently object when the Court leaves conservative rulings intact. On the right, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch regularly dissent when conservative petitions are denied. Justice Brett Kavanaugh has increasingly joined these dissents, particularly in cases he believes the Court should hear. These dissents, often called “dissentials,” have become a persistent feature of the Court’s order list.
Chief Justice Roberts, however, appears content with the current volume. He has not dissented from a cert denial in nearly a decade, and only a handful of times before that. Justice Amy Coney Barrett is similarly restrained, having dissented from a denial just once. At a book talk in September 2025, Barrett defended the Court’s narrow docket, explaining that she asks her clerks each year whether there are petitions that genuinely warrant review but were not granted. She reported that her clerks could not identify any such cases—a response that implicitly questions the judgments of her colleagues who routinely dissent.
The result is a structural impasse. A minority of three justices cannot overcome the collective resistance of their colleagues. And with the Court’s current composition, the docket is unlikely to expand on its own. The Rules of Three proposal aims to break that logjam, not by changing the Rule of Four, but by creating new mechanisms for a minority of three to influence the Court’s workflow.
The Join-3: Reviving the Courtesy Fourth
At the heart of the proposal is the “Join-3,” a practice rooted in the Court’s institutional history but increasingly abandoned in the modern era. The Join-3 is a courtesy vote: when three justices are willing to grant a certiorari petition, a fourth justice provides a “courtesy fourth” vote to push the case over the threshold. That fourth vote is not a judgment on the merits. It is, instead, an act of collegiality—a way to ensure that a meaningful minority of the Court gets a hearing for a case it deems important.
The practice dates to the mid-1970s, emerging during Chief Justice Warren Burger’s tenure. It became firmly established within a few years, and its most famous application came in the landmark case Chevron v. National Resources Defense Council, when Justice Sandra Day O’Connor provided a Join-3 vote to grant review of a case that would define administrative law for decades. The courtesy remains a powerful tool for ensuring that the Court’s docket reflects the priorities of more than just the median justice.
In recent years, however, the Join-3 has fallen by the wayside. As the docket has shrunk and dissents from denial have multiplied, justices have become less willing to provide courtesy votes, even for ideological allies. As Sarah Isgur observed in her book Last Branch Standing, “courtesy fourths” are no longer provided even for ideological allies. The proposal would restore this practice, but with a crucial difference: it would be automatic.
Under the proposed rule, the chief justice would offer a guaranteed Join-3. In any case where three other members vote to grant certiorari, the chief would supply the necessary fourth vote. Because the chief speaks first at conference, he would have to commit to the Join-3 without knowing how his colleagues will vote on any given case. This is a leap of faith, but one that would signal a genuine commitment to collegiality over strategic advantage.
The benefits would be immediate. Trios of justices would no longer need to spend months trying to scrounge up a fourth vote. The endless cycle of reschedules and relists—what has been called “docket purgatory”—would be broken. Dissents from cert denial, often prepared at great length and for purely expressive purposes, would become unnecessary. And strategic denials, where justices band together to block a case from the docket, would be far harder to engineer.
There is, of course, a risk. Cases granted through a Join-3 are less likely to command five votes at the merits stage. The most likely outcome is an affirmance, which could convert a favorable circuit precedent into an unfavorable national one. The dissenting justices would have to choose between tolerating a bad regional ruling or cementing it as binding law nationwide. At some level, the proposal argues, this is a feature rather than a bug. Dissents from denial are often performative—a way to signal displeasure without bearing responsibility for the consequences. The Join-3 would call that bluff.
The Pre-3: Streamlining the Discussion List
If the automatic Join-3 takes hold, the natural next step is to expedite the process further through a “Pre-3.” Under current practice, petitions are placed on a discussion list, and only those cases are considered at the justices’ private conferences. Any justice can add a case to the list, but the process still requires discussion and a formal vote.
The Pre-3 would allow a justice to pre-vote to grant certiorari rather than simply listing the case for discussion. If three justices pre-vote to grant, the automatic Join-3 would supply the fourth vote, and the case would be added to the docket without further conference deliberation. This is a modest procedural tweak with significant consequences: it would effectively allow a minority of three to fast-track a case, bypassing the traditional conference entirely.
This approach would accelerate the Court’s consideration of petitions that clearly merit review, freeing up conference time for more difficult or contested questions. It would also reduce the strategic gamesmanship that can occur when justices try to relist a case repeatedly in hopes of flipping a colleague’s vote. In short, the Pre-3 would make the certiorari process faster, more transparent, and more responsive to the priorities of a committed minority.
The DIG-3: Correcting False Positives Before Argument
Granting more cases inevitably increases the risk of “false positives”—petitions that appear certworthy at the certiorari stage but prove to be flawed upon closer inspection. Sometimes the petitioner, eager for review, presents a narrow question in the cert-stage briefs, and then tries to expand or change the issues after cert is granted. When the justices discover this bait-and-switch, they often dismiss the case as improvidently granted, or “DIG” it.
Under current practice, DIGs usually occur after oral argument, but before a decision is issued. The vote count required to DIG a case is unclear: it takes four votes to grant, but it may take five to DIG. In the 2010 case Boyer v. Louisiana, four justices dissented from the DIG, suggesting that five votes were needed. This asymmetry means that a case can linger on the docket even when a substantial minority believes review was a mistake.
The proposal introduces a “DIG-3” rule, modeled on a parliamentary motion to reconsider. In legislative bodies, a motion to reconsider can only be made by someone who voted with the prevailing side. The same logic would apply at the Supreme Court: if any three justices who voted to grant certiorari decide, after reviewing the merits briefs, that the case was improvidently granted, the case would be dismissed.
The DIG-3 would operate after briefing is complete but before oral argument, saving the Court time and resources. The Visa v. Osborn case from 2016 illustrates the problem. There, the Court DIG’d a case after noting that the petitioners, having persuaded the Court to grant certiorari on one issue, “chose to rely on a different argument” in their merits briefing. The DIG-3 would make it easier to catch such problems early, before the Court invests in argument preparation. The chief justice could provide an automatic fourth vote by virtue of the Join-3, but that may not be necessary. A DIG-3 would be a powerful tool for the minority to correct errors and keep the docket clean.
The Record-3: Making Votes Transparent
One of the more subtle frustrations for Court watchers is the opacity of the voting record. In signed opinions, each justice’s vote is transparent. But in cert denials, emergency applications, and other procedural rulings, the vote count is often obscure. Even when three justices dissent from a denial, and one or more concur, there is usually at least one justice whose position cannot be determined with certainty. The emergency docket presents the same problem: five votes are needed to grant relief, but without at least four published dissents, it is impossible to know exactly which justices joined the majority.
The proposal includes a “Record-3” rule, inspired by the Constitution’s Journal Clause. That clause requires that the “Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.” It was designed to make it harder for legislators to vote in secret and evade accountability.
A Supreme Court analogue would require that, upon the request of three justices, any vote be published. A minority of three could force the members of the majority to reveal how they voted on a cert denial or an emergency application. This would end the practice of hiding behind ambiguous order lists and would make each justice accountable for his or her votes.
The potential downside is “naming and shaming.” Public disclosure could intensify political pressure on individual justices, particularly in high-profile cases. But the proposal argues that if a justice is willing to cast a vote, that justice should be willing to own it. The Record-3 would be a powerful tool for accountability, and, used judiciously, it might reduce the strategic denials and hidden maneuvering that currently characterize the Court’s less visible work.
The Conference-3: Reforming the Emergency Docket
Perhaps the most controversial area of Supreme Court practice is the emergency docket—the fast-moving, high-stakes litigation that has become a defining feature of the modern Court. Critics have long complained that these cases are decided without fulsome deliberation, without oral argument, and often without any conference at all.
Justice Kagan voiced this concern in 2025, dissenting from an emergency order in Department of State v. AIDS Vaccine Advocacy Coalition. She wrote that the Court had to consider the application “on a short fuse—less than three weeks,” and did so “with scant briefing, no oral argument, and no opportunity to deliberate in conference.” This is hardly an isolated incident. In 2016, leaked “shadow papers” revealed that the Court resolved the Clean Power Plan case entirely through memoranda, without a formal conference discussion.
The “Conference-3” rule would address this problem directly. Under the proposal, whenever an emergency application is filed—or is even imminent—any three justices could call for a conference to be held within 24 hours. The conference could be virtual or in person, depending on the justices’ schedules. Its purpose would be to discuss the pending application, to consider briefing schedules, administrative stays, the possibility of oral argument, and the ultimate disposition of the case.
This approach would allow the justices to be proactive rather than reactive. Instead of resolving emergency cases through a flurry of emails and memos, the Court could actually engage in the kind of collaborative deliberation that its institutional reputation depends upon. Even if the final vote splits 6-3 or 5-4, at least all the justices will have been heard.
The rule would need a special accommodation for capital cases. Death warrants typically expire at a specific time, often midnight. Defense lawyers time their appeals to reach the Supreme Court just before the warrant expires, forcing an 11th-hour decision. A 24-hour delay to hold a conference could cause the warrant to expire, restarting the execution process by days, weeks, or months.
The proposal therefore suggests that the Conference-3 should only apply in capital cases if the 24-hour delay would not extend beyond the length of the death warrant. In practice, the Court’s death penalty clerk often knows that emergency applications are coming and can alert the justices in advance. That advance notice would allow the Court to hold a conference before a formal appeal is even filed, avoiding the midnight rush altogether.
The Argue-3: Expedited Oral Argument for Emergency Cases
Emergency docket cases rarely receive oral argument. The Court often resolves them on the papers alone, leaving the Justices with only briefs and the parties’ written submissions. Justice Kavanaugh has repeatedly urged the Court to hold oral argument on an expedited basis in such cases, but his calls have met with mixed success.
There are notable exceptions. In October 2025, the Court scheduled oral argument in Trump v. Cook for January 2026. In April 2024, the Court scheduled argument in Trump v. CASA for May 2025. And in December 2023, the Court scheduled argument in Ohio v. EPA for February 2024. These examples show that the Court can move quickly when it wants to, but the decision to do so is made ad hoc, with no clear standard for when argument is warranted.
The “Argue-3” rule would establish a clear default: with any pending emergency application, three justices could set a date for oral argument. Lower courts routinely schedule emergency arguments in a matter of days, and the Supreme Court, with its experienced staff and focused calendar, could likely do the same. An argument during a regularly scheduled sitting could be held in person; otherwise, the Court could use the virtual format it adopted during the pandemic. Remote arguments are standard in the lower courts and would provide a perfectly adequate forum for emergency appeals.
The proposal includes a critical safeguard: invoking the Argue-3 would trigger automatic administrative relief for the party seeking emergency action. Specifically, if a lower court issued an injunction and an Argue-3 is invoked, the automatic denial of an administrative stay would allow the lower court’s judgment to go into effect while the case is being briefed and argued. This ensures that the Argue-3 is not used as a delaying tactic. If three justices want oral argument, they must accept that the status quo—as defined by the lower court—will remain in place until argument is held.
Why the Rules of Three Depend on Unanimous Adoption
The success of these reforms hinges on a founding principle: they must be adopted unanimously, with each justice agreeing to surrender a measure of control in exchange for a more predictable and collegial process. The minority would gain guaranteed procedural leverage—the ability to force cert grants, DIGs, conferences, and oral arguments—but would lose the ability to block action through strategic stonewalling. The majority would gain a smoother path to substantive outcomes but would have to concede a degree of procedural oversight.
This is a rational bargain for both sides. Justices in the minority on any given issue would value the procedural advantages, while justices in the majority would value the substantive advantages. The exchange makes each side’s position more secure in the areas that matter most to them. And because the rules apply symmetrically across the ideological spectrum, they would tend to reduce the perception that the Court is a purely partisan institution.
The Role of the Chief Justice is to propose these rules and to serve as a neutral enforcer. But the real power lies in the hands of the three-justice minority, which would be able to invoke these tools as a matter of right. That is a profound shift in the Court’s internal balance of power, one that would restore a measure of deliberation and accountability to an institution increasingly criticized for opacity and speed over care and transparency.
The proposals are ambitious, and not without risks. The Join-3 could flood the docket with cases that are ultimately affirmed, leaving the Court with a lower success rate and potentially less persuasive precedent. The Conference-3 could be used to manufacture delays in emergency cases. The Record-3 could amplify public pressure on individual justices and make the confirmation process even more contentious.
Yet the fundamental insight behind the Rules of Three is sound: a small minority of the Court can be a powerful force for institutional improvement. By giving that minority the procedural tools to force deliberation, demand transparency, and shape the docket, the Court could become more thoughtful, more collegial, and more accountable to the litigants and the public. The trade-offs are real, but in an era of shrinking dockets, expanding emergency litigation, and lingering questions about the Court’s legitimacy, the case for empowering the minority has never been stronger. If the Court adopts these rules, it could transform its internal culture and, in doing so, restore some of the public confidence that has eroded in recent years.
