SCOTUS for law students: A foot in two Terms (sponsored by Bloomberg Law)
on Jun 1, 2012 at 1:25 pm
Beginning in January each year, the Supreme Court officially becomes schizophrenic. But don’t worry, there is no treatment required.
At some point in mid- to late-January, the Court stops setting cases for argument in the remaining months of the current Term and shifts to filling up the slots for the next Term. As a result, the Justices are working on their active docket and planning for what lies ahead.
The main reason for this practice is simply one of timing. The Court hears oral arguments in seven sessions, each spanning two weeks, from October through April. The Court’s rules spell out a 105-day schedule for parties to file briefs: forty-five days after the case is granted for the petitioner, thirty days after that for the respondent, and thirty more days for a reply brief by the petitioner. By January, it becomes difficult as a matter of simple mathematics to grant a petition for certiorari and still be able to schedule that case for argument in April on a normal briefing schedule.
To law students watching the Court, this scheduling may make it more difficult to figure out when a case may be argued or decided. Those writing law review notes or comments about pending cases, for example, face a challenge of trying to calculate whether they can get published before a case is decided.
But the schedule may have other effects, as well. Lawyers who will be briefing granted cases often prefer that the Court grant certiorari in the spring, making it possible for them to receive significant extensions of time to file their briefs. (The Court slots cases for oral argument roughly in the order in which they are granted, so cases that are granted in late January for an October argument will have a larger window for briefing than, for example, a case granted in early-January for an April argument; in the latter scenario, the parties to the cases could expect to receive only short extensions at best.)
Of more consequence is the question of whether the Justices are more likely to grant certiorari at certain times of year. And if the answer to the question is yes, then are lawyers who follow the Court closely able to increase the odds of having a case granted by trying to maneuver around the calendar?
It does seem that the Court has developed a pattern in which it grants review in a sizeable number of cases at the very beginning of the Term — in late September and October. (This particular pattern, however, can also be attributed to the fact that the Justices do not normally consider any new cases for review during their summer recess, so that they have a large number of petitions from which to choose when they return in late September.) Then there seems to be a bit of a lull in late fall, followed by sporadic grants of certiorari in January through May. For example, since January 1, 2012, the Court has agreed to hear a total of sixteen new cases and one reargued case. All but one of those are set for argument in the next Court Term that will begin on October 1, 2012.
Then as the current Term draws to a close in the last two weeks of June, the Justices have tended to add a slew of new cases to their docket. On last Term’s final order list, the Court granted eleven new cases in one day – a big uptick that allowed the Justices to have enough cases to fill up their argument calendar for the fall.
That significant increase also clearly suggests that petitions filed in the spring and considered by the Court in late June have a mathematically better chance of success. Two different sets of orders from last spring illustrate the point. On May 31, 2011, the Court granted one case and denied 117 petitions. On June 27, 2011, the Court granted eleven petitions and denied 166 cases.
It seems unlikely that so many more important cases were filed for consideration in late June than in late May. One possibility is that the Justices were driven in part by the need to grant enough petitions to fill up the slots on the fall oral argument calendars.
But more is at work. Petitioners do file petitions and reply briefs early in order to have their cases considered before the recess and thereby avoid the Court’s “long conference,” when the Justices in a single day consider all of the petitions that have accumulated over the summer day.
Another important factor is that by tradition, the Court considers at the end of June cases in which the Government has filed “invitation” briefs. These are generally important cases in which the Court has solicited the Government’s input on whether certiorari should be granted. When those briefs are filed at the end of the Term, it isn’t surprising that the number of cert. grants goes up.
With that said, it’s also likely that this pattern can become a self-perpetuating phenomenon, as lawyers who follow the Court closely try to move their petitions to the late June Conferences precisely because they know that the Justices will be looking to round out the fall calendar.
This is not to suggest that there is anything inappropriate about trying to make the Court’s calendar work in your favor. It is, literally, a level playing field in which everyone has access to the same information about the Court’s practices and procedures.
Where does that leave the Court in the current Term, looking ahead to the fall? Right now, the Court is lagging substantially in the number of cases it has agreed to hear for next Term. So far, the Justices have only sixteen cases scheduled for oral argument next Term.
But if recent practice is a reliable guide, the Justices are likely to hear and decide more like seventy cases during the next Term. That means that in the four weeks remaining in the current Term and then by granting cases next fall, the Court will choose roughly fifty-five more cases to decide. It is difficult to predict what those cases will be or how they will shape the character of what will be known in Court annals as the October Term 2012.
What does seem clear is that, with one significant exception, the cases to be argued in the fall before Election Day, November 6, will provide the Court a bit of a respite from the glaring political spotlight of this spring’s impending rulings on the Obama health care law and the Arizona immigration law. The one exception is Fisher v. University of Texas at Austin, the revisiting of the constitutionality of affirmative action in higher education.
Was this part of the Court’s own calendar strategy, to provide a cooling-off period from what is sure to be a political firestorm over the Court in the coming weeks? It seems highly unlikely that the Justices made a conscious effort to both keep the number of cases down and to defer consideration of any controversial issues until later in the next Term. More likely, it is just the way the calendar has played out.
