OT’05

By Tom Goldstein
on May 4, 2005 at 10:45 am

With the Court having just completed arguments for this Term, now is an appropriate time to look over the horizon to next Term.

This year, consistent with past practice, the Court began granting certiorari in February for cases to be heard in its October Term 2005. (For those not steeped in Court terminology, the Court names its terms based on when they start – so the Term starting this coming October (after the upcoming summer recess) is “October Term 2005.”)

Starting with this February and continuing to the end of this Term in late June, the Court will try to fill its argument calendars for the upcoming October, November, and December sittings. (Again, for those not steeped in terminology, an “argument sitting” is the two-week period each month between October and April in which the Court hears arguments — generally on the first three days of each of the two weeks.)

With two cases each argument day, the Court’s October, November, and December sittings ordinarily require 34 cases – 10 in October (because of a day off for Columbus Day) and 12 in both November and December. Next Term, however, there will be only 8 cases in October, and hence 32 cases from October to December. You may remember that in 2003, the Court did not hear argument on Yom Kippur, which fell during the October sitting. In 2005, Rosh Hashanah will fall in the October calendar – it begins on October 3 at sundown. And the Court will not hear argument on October 4. My sense is that, technically, the Court is not “observing” Rosh Hashanah – the Court will presumably formally sit so that lawyers can be admitted that day – but the argument schedule is a nod to the fact that Justices Ginsburg and Breyer (and potentially lawyers who would otherwise be arguing) will be observing the holiday.

So far, the Court has granted cert. in 20 cases for next Term – so the October sitting (8 arguments) and November sitting (12 arguments) are both full. The Clerk’s Office sets cases for argument in the order briefing is completed, which by and large tracks the order in which cert. is granted. It seems most likely that the October calendar will include the cases granted through 3/7, with the exception of No. 04-473, Garcetti (a public employee speech case), in which the petitioner was granted a long extension of time to file his brief (until 5/27).

It is important for the Court to fill the argument calendar through December by the end of the Term because the Justices will not grant any more cases until the Court returns from its summer recess at the very end of September. By that point in time, it takes exceedingly expedited briefing in order to have a case ready for argument in the December sitting. The only other option is to grant certiorari during the summer recess, which the Justices strongly prefer not to do, presumably because they are unable to meet personally in “Conference” to discuss the cases. (Again, a point about Court terminology – the Justices use the word “Conference” to refer to themselves collectively in memoranda and also to refer to their regular meetings together.)

As for filling December this year, there are 7 Conferences remaining before the end of this Term – one each Thursday starting with 5/12. So, if the Court grants 2 more cases per Conference, it will fill 34 argument slots (the current 20 plus 14 more). That’s 2 more than needed to fill through the December sitting. So it looks like the Court won’t have any problems.

Next Term has two truly blockbuster cert. grants thus far. The assisted suicide case (No. 04-623) will be argued in October and, if the Clerk’s Office decided to be dramatic, could be set for the opening day of Court – First Monday – October 3. The Solomon Amendment case (No. 04-1152) will be argued in November.

The cert. grants so far don’t show any real themes. There are two cases about the interstices of the FTCA: No. 04-579, Olson (inspections) and No. 04-848 (mail delivery). There are the usual array of civil procedure and habeas procedure cases. As mentioned above, there are already two granted capital cases, and several more possible grants in death penalty cases are upcoming.

State sovereign immunity also will be back in play next Term, although not in pathbreaking contexts. The Court already has one case: No. 04-885, Katz (bankruptcy). And it almost certainly will take another during its May 12 Conference. That day, the Justices will consider three petitions presenting a split over the abrogation of state sovereign immunity under Title II of the ADA in the prison context in the wake of Tennessee v. Lane: No. 04-947, Pfiffer and Nos. 04-1203 and -1236, Goodman.