The Supreme Court released its December calendar today. During their December sitting, which begins on November 28, the justices will hear eight hours of oral argument over six days: two one-hour arguments on both Monday, November 28, and Monday, December 5, and one one-hour argument on each of the four remaining days – November 29-30 and December 6-7.
As when the November calendar was released, the most interesting part of the December calendar may be what cases were not on the calendar: the three cases – Trinity Lutheran Church v. Pauley, Murr v. Wisconsin, and Microsoft Corporation v. Baker – that were granted in January of this year, before the death of Justice Antonin Scalia. Because cases are normally slotted for oral argument in at least roughly the order in which they were granted, the delay in scheduling these three cases is unusual. This is particularly true because all three cases have been fully briefed for over two months. Moreover, the court has four days in the December sitting which it will only hear one argument and could thus easily accommodate an additional three arguments. All of the cases on the December calendar were granted (or, for two cases, the court noted probable jurisdiction) in June; with the release of today’s calendar, all of the cases in which the court granted review before its summer recess have now been scheduled for oral argument except for the three January cases.
There is no way to know why Trinity Lutheran, Murr, and Microsoft have not yet been scheduled for oral arguments. However, the fact that the cases were all granted before Scalia’s death and the likelihood that he may have been one of the votes to grant review – the more conservative position lost below and sought review in each case – suggest that a desire to avoid a 4-4 tie, in the absence of a ninth justice, may be playing a role in the failure to schedule the case.
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