What we’ve seen several times is birther cases submitted to a justice of the Supreme Court, rejected by that justice, filed again with another justice, and finally distributed to the whole court. This is pretty much standard practice.
If a Justice acts alone to deny an application, a petitioner may renew the application to any other Justice of his or her choice, and theoretically can continue until a majority of the Court has denied the application. In practice, renewed applications usually are referred to the full Court to avoid such a prolonged procedure.
Nevertheless, some birthers are all excited by this exact scenario in Orly Taitz’ case of Noonan v. Bowen, denied by Justice Kennedy, resubmitted to Justice Roberts and distributed for consideration on February 15.
One birther, Al Halbert, in a paroxysm1 of conspiracy optimism, wrote:
This may give the Chief Justice the room he needs to excuse himself from this duty [administering the Oath of Office to President Obama] as the court will conference this grave matter a short three weeks later. Of course this gives Obama time to consider resigning and sparing the nation the agony of such a matter having to be taken-up by SCOTUS.
And it may not, for we’ll see what Chief Justice Roberts does. [Historical note: Chief Justice Roberts did indeed administer the oath of office to Barack Obama twice, on January 20 and 21.] As far as I’m concerned, the chances that the Supreme Court will hear the case are between negligible and nil. Perhaps I should go ahead and write the article for automatic publication on February 19, “Supreme Court declines to hear Noonan case without comment. In the list of Supreme Court orders published today, Noonan appeared on the list under ‘denied.’”
1I’m trying to get the reading level up.