In four recent cases involving the Federal Employers Liability Act the Supreme Court of the United States, after granting certiorari, reviewed the facts of the cases to determine if there was sufficient evidence to allow the cases to be heard by a jury. Justice Frankfurter in a lengthy dissenting opinion refused to hear these cases on their merits. He would have dismissed them on the ground that certiorari was improvidently granted, although no new evidence warranted this conclusion. Justice Frankfurter maintained that any justice has a right to refuse to hear a case after certiorari has been granted, and that the rule of four is not inflexible, particularly when a class of cases is systematically taken for review.
Robert L. Knauss S.Ed.,
Constitutional Law - Certiorari - Integrity of the Rule of Four,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol56/iss1/8