Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."

Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing.