Analysis: An Additional Week of October Argument?
on May 16, 2007 at 6:55 pm
Jan Crawford Greenburg of ABC News interviewed Justice O’Connor at the meeting of the Coke Inn of Court here in Washington last night. It was an interesting program. The Justice spoke very passionately about judicial independence and education, issues that obviously are very important to her. Not surprisingly, the Justice declined to give more than a brief answer to the questions that called on her to make judgments about her colleagues or about nominees, such as what she thought of the Harriet Miers nomination and whether she thought that the Court had changed much and become more conservative. It was a difficult interview, and Jan was impressive.
One small point emerged that follows up on my technical posts regarding the docket. Jan stated in the course of asking about the shrinking docket that the Court next Term would have three weeks of argument in October and one in April. (It seemed that Jan was describing a change for next Term, though it was possible she was referring to the Term after.) It doesn’t surprise me that this issue is being discussed in the Court. It makes a great deal of sense, all other things being equal, to front-load the argument calendar to permit the Justices to focus on opinion writing at the Term’s end.
Jan’s sources at the Court are excellent, and she may well have been told that. Or she may have intended to speak hypothetically, though I didn’t hear it that way (others who were at the event can comment and correct me). I would be surprised if such a decision has actually been made. It would be impossible to implement that proposal for next Term (one got the sense that Justice O’Connor’s off-the-cuff reaction was the same), and it would be unusual for the Court to have made a decision about the argument calendar for the following Term already.
Under the Court’s usual practice, the Court would require 34 arguments to fill the October, November, and December calendars. Moving an argument week from April to October would raise that number to 40.
Given the time required to prepare and file merits briefs, most of those cases have to be granted before the Court departs for the summer recess. Certainly, all of the October and November cases have to be granted by then. Under ordinary practice, that is 22 cases; with an additional week in October, it would be 28. (Granting cases at the end of the summer on expedited schedules to be heard even in the first week of the December sitting is a substantial stretch.)
As Jason’s StatPack reflects, thus far, the Court has granted 9 cases for OT 2007. My earlier post predicted a substantial shortfall in the number of cases that must be granted before the recess in order to fill October through December. Adding another week of argument – 6 more cases – to October seems simply impracticable.
The Court could make up some of the difference through “summer grants†– i.e., an order list issued during the recess. But the Justices have shown little interest in using that procedure. And it likely would take a large number of grants to make up the shortfall. Those grants would also effectively be “taken from†the January calendar, where they normally would be set for argument if cert. were granted instead at the end of the recess, and the shortfall in cases would simply shift to later in the Term.
