Whitney’s lawyers were confident that the Supreme Court had not fully appreciated the jurisdictional base for appeal that they laid when they had sought a certificate from the California Court of Appeal.  Accordingly, they filed a petition for rehearing.^[100]  “This court acted under a misapprehension of the facts,” the petition explained.  The state intermediate appellate court’s “order and the stipulation upon which it was entered did not constitute an attempt to confer jurisdiction upon this court by consent.”  Rather, “the stipulation and order stated the actual facts concerning the raising of  .  .  .  Federal questions in the California District Court of Appeal, and the stipulation was entered into and the order was made for the purpose of enabling these actual facts to appear in the record.”^[101] 

     It is unusual for the Supreme Court to grant review in a case, hear oral arguments, and then withdraw its jurisdiction.  It is still more unusual for the Justices to rehear such a case where their jurisdiction remains highly doubtful.  And yet that is precisely what happened on December 14, 1924, when the Court agreed to take a second look at Whitney v. California.  The Justices, or a majority of them, wanted to decide this case and they were unwilling to let jurisdictional barriers stand in their way.  Rehearing was rescheduled for March 15, 1926.^[102]