More on the State of the Plenary Docket

I would like to commend Tom on his very thorough and informative post laying out the potential shortfall in plenary cases for October Term 2007. Tom highlighted a number of interesting phenomena in his post, one of which I will discuss in some detail here.

In recent Terms, the Court has increasingly granted cases at the end of the summer recess to fill the December calendar and in January to fill the April calendar. In both scenarios, the short timeframe between the grant of certiorari and the scheduled oral argument in those cases required the Court to order expedited briefing by the parties. As Tom noted, one problem is that an expedited briefing schedule can disserve the Court and the parties by arguably leading to less thorough presentations by counsel. For small firms and solo practitioners especially, an expedited briefing schedule can be crushing in terms of workload. Nonetheless, despite the flurry of grants and expedited briefing in a number of cases, this past Term was the first year in recent memory in which the Court could not even fill the total number of (morning) slots on its argument calendar. Indeed, Tom’s calculation of 71 signed opinions is the lowest output for the Court since 1865. At a time of extremely large caseloads in the lower courts, recent figures on the Supreme Court’s plenary docket are truly astonishing.

One question that was asked in the comments to Tom’s post was whether anyone has ever studied the patterns in the Court’s grants of certiorari. The answer to that question is yes. In an excellent article published in 2004 in the the Arizona State Law Journal, Peggy and Richard Cordray studied precisely that phenomenon by looking at seasonal trends in grants of certiorari during the 1980s and 1990s. I would post a link to the article here, 36 Ariz. St. L.J. 183, but I could not find it online in any source offering unrestricted access (such as SSRN or Bepress).

After analyzing nearly 20 years worth of data on certiorari grants, they concluded that there were statistically significant and “striking fluctuations in the Court’s rate of granting petitions for certiorari.” And their data was indeed striking. The average grant rate during certain months of the year was almost twice the grant rate during other times of the year. According to their data, the Court granted a significantly lower percentage of petitions during the summer recess (.72%), and the February (.77%) and March (.86%) sessions, and a significantly higher percentage of petitions during October (1.52%), November (1.57%), January (1.85%) and June (1.73%). Although I will not get into the specifics here, a chi-square analysis permitted the Cordrays to reject the null hypothesis of an essentially random distribution at a very high level of statistical significance.

The Cordrays hypothesized, I think correctly, that the incredibly high grant rates during January resulted from (perceived) pressure to fill the argument calendar, even though the Court was hearing more cases during the 1990s than it is now. They also posited that the higher grant rates in October, November, and June also stemmed from pressure to fill the calendar. As Tom noted, the Court often expedites cases granted in November and December in order to fill the March and even April argument calendars.

One other possibility is that, even prior to the Cordrays’ article, sophisticated practitioners knew about the seasonal trends in the Court’s certiorari decisions, and thus made sure to file meritorious petitions for certiorari in order to have them considered during a particular month. There are a number of intuitive reasons to reject this hypothesis, a couple of which I will discuss here. First, even if petitioners can somehow “time” the filing of a petition for certiorari in order to give it the greatest chance of being considered during a particular conference, a number of external factors, including the grant of an extension to file a brief in opposition, can easily disrupt that timing. Second, petitioners are still limited by the ninety-day filing rule for petitions for certiorari, even if it is possible to obtain an extension from the Clerk’s Office for up to sixty days. Third, although it has become conventional wisdom that it is best not to have a petition considered during the summer recess due to the volume of petitions considered by the Court upon its return (which probably explains the counterintuitive grant rates for the petitions considered after the summer recess), I doubt seriously that Supreme Court practitioners, even highly experienced ones, were aware of the striking disparity in the grant rates during the various non-summer months until the Cordrays’ article was published.

One real possibility, therefore, is that the Court subconsciously (or perhaps consciously) applies different criteria or gives greater consideration to petitions for certiorari during particular months of the year, depending in large part on the demands of filling the plenary docket. If attorneys are not sophisticated enough or simply cannot time the filing of petitions for certiorari in order to ensure consideration during a particular month, then it is probably safe to assume that the quality of petitions is not meaningfully different at various times of the year (except in June perhaps if the Clerk’s Office is trying to ensure consideration of certain petitions before the summer recess). If that is so, then it may in fact also be true that the seasonal trends result in lower-quality grants during the heavy months and greater selectivity during the lighter ones.

Tom stated that, though we can expect a number of grants between now and the end of the Term, he does not believe that the Court can fill its 25 open argument slots. I largely agree with him, but the Cordray’s data would suggest that the Court will likely try to do so anyways (as evidenced further by Tom’s description of the activities of the Clerk’s Office), and thus we can probably expect a very high number of grants between now and the end of the Term.