The beginning of the Term in Plain English

By Lisa Tucker
on Sep 7, 2010 at 7:30 am

Labor Day weekend is now but a memory, which means that the beginning of October Term 2010 (whose name derives from its beginning, as dictated by statute, on the first Monday of October) is right around the corner.  Supreme Court watchers are rubbing their hands together with anticipation.  So what will happen in the days leading up to October 4?  A few details:

First, the Justices will be returning from their summers far and wide.  For example, the Chief Justice spent time this summer in Maine and in Australia, while Justice Kennedy followed his long-time tradition of teaching law students in Salzburg, Austria.  It is common for the Justices to teach in foreign countries, give speeches, and take some vacation time; after all, their schedules are a good deal less flexible from October until the end of June.  Of course, Justice Kagan has been hard at work at the Court since her swearing in on August 7, learning the ropes and catching up on the tasks that the other Justices had the whole summer to complete.

Speaking of Justice Kagan, her formal investiture will take place on October 1 with a special ceremony in the Supreme Court’s courtroom.  At the investiture, she will have the opportunity to sit in the chair once occupied by Chief Justice John Marshall, and afterwards she will walk down the front steps of the Court with Chief Justice Roberts – a terrific photo op.

On September 27, the Justices will hold their long Conference.  The term “Conference” can be used to describe both a private meeting of the Justices and the Justices as a group.  At the former kind of Conference, no one else is present, and the junior Justice (now Justice Kagan) sits near the door and is responsible for tasks such as passing notes in and out, answering the door, and getting coffee.

At the long Conference, the Justices must discuss all of the cert. petitions – as many as two thousand – that came in over the summer.  You probably remember from Plain English posts last Term that a petition for certiorari is a formal request to have the Court review the decision of some lower court – usually either the federal courts of appeals or state supreme courts.  The thirty-six or so law clerks have spent the summer reviewing the cert. petitions and writing memos recommending whether the Court should grant cert. (that is, review the case on the merits) or deny cert. (decline to hear the case).  Most recommendations will be to deny, usually for one or more of the following reasons:  the issue is not a pressing one, the case does not present a good “vehicle” for deciding the case (meaning that the facts aren’t ideal for judicial decision-making), or the Court has already decided a similar case in the past.

But some cases will warrant a “grant” recommendation, and the Court will pay special attention to these (although the clerks’ recommendations are certainly not dispositive, they become pretty good at sifting through the petitions for the ones that deserve a second look by the Conference).  During their long September 27 meeting, the Justices will discuss each case one by one, then vote on whether to hear it.  According to the Rule of Four, four Justices must vote to grant cert., or the petition is denied.

In the cases in which the Justices grant cert., briefing and oral argument schedules will follow quickly.  The petitioner (the party seeking the Court’s review) has only forty-five days to file a brief of approximately sixty pages, arguing the merits of the case); the respondent (the party who won in the court below) has only thirty days to respond.   At some point after all of the briefs are filed, the parties will argue their cases in front of the nine Justices.

After the long Conference, the Term will begin promptly at 10:00 a.m. on October 4.  The Chief Justice will likely welcome Justice Kagan and then move right along to the first oral arguments.  And the October docket is full of some important and interesting cases, including a case about employee privacy, a case about the right to counsel, and a case about the First Amendment right to express one’s views, even at a funeral.

Looking forward to a fascinating Term!