State of the Docket
on Dec 1, 2008 at 2:12 pm
I expect that the Court will hear argument in 76 cases this Term (deciding 75, given the dismissal of Bell v. Kelly (07-1223)). Thus far, the Justices have granted certiorari in 65 cases.From October to January, the Court scheduled a total of 50 cases for argument. That is a high number because the Court “frontloaded” its argument calendar, scheduling afternoon arguments in October, November, and January.
Fifteen granted cases remain to be scheduled for argument. The Court has two conferences remaining — December 5 and 12 (click here for our list of petitions to watch) — for which the granted cases can be briefed in time for argument in the March sitting. Those conferences are likely to produce roughly five grants (bringing the total to 70). So, the Court is likely to have approximately twenty cases available for the twelve combined days of the February and March sittings. One approach to the calendar that would not involve canceling any argument days in March would be to hear eleven cases in February (five days with two arguments, and a final day with one argument) and nine cases in March (the first week with two arguments per day, and the second week with one).
Cases to be argued in April will come from the January Conferences (held on the 9th, 16th, and 23rd). The principal advantage of the Court frontloading its calendar is that the Court can hold only a single week of arguments in April — leaving the Justices more time to work on opinions in previously argued cases — without reducing the total size of the docket.
So, a likely scenario is that the Court will grant six cases between the first two January conferences (bringing the total for the Term to 76). Some of these are likely to be petitions with respect to which the Court has sought the views of the Solicitor General, for which the government’s briefs should be filed in December. The cases granted from the remaining January conference (on January 23) would then be argued in October Term 2009.
The argument calendar is tight enough — i.e., the number of days available to brief cases before argument is short enough — that the grants will be announced on the afternoon of the day of Conference in order to start the briefing clock. No extensions of time for briefing will be available, and the parties will be expected to work together to divide between themselves the roughly 90 to 100 days available for briefing.
Given the limited public interest of the granted cases, the public’s interest at Term’s end will be focused more on potential retirements than potential blockbuster rulings. The business community is quite interested in pending cases involving preemption (particularly No. 06-1249, Wyeth v. Levine) and labor (No. 07-581, 14 Penn Plaza LLC v. Pyett). But there are not many cases of significant broader public interest. That could change if the Court agrees to review two cases in the coming weeks: the challenge to the extension of the Voting Rights Act (No. 08-322, NAMUDNO v. Mukasey) (discussed here); and a challenge to the President’s power to detain indefinitely a terrorism suspect captured and held in the U.S. (No. 08-368, Al-Marri v. United States) (filings here).
