The Pace of O.T. 2009

By Tom Goldstein
on Jan 11, 2010 at 10:54 am

Various recent articles and posts in the blogosphere have suggested that the Court is behind on its workload, principally because of anxiety about when it would decide the Citizens United campaign finance case.  So I thought it might be useful as the Court begins its January sitting to run the numbers, which Erin Miller was good enough to compile (and to produce the charts below).

Regarding grants, the Court reached its Winter break ahead of its usual pace.  Before the cert. grant in the Dolan case on Friday, 74 cases were available for argument this Term.  The average over the 5 previous terms was far lower.  The number granted since the Court began this Term (30) is roughly comparable to previous Terms.  The differences is that the Court received the great benefit of its previously having granted a large number of cases (44) last Term that rolled over into this one.

Friday’s single grant from the most recent conference did considerably slow the Court’s ability to fill out its argument calendar.   In previous Terms, the Court had granted review in a significant number of cases from that Conference:  O.T. 2008 (5); O.T. 2007 (6); O.T. 2006 (7); O.T. 2006 (6); O.T. 2005 (9).

Currently, the Court has 3 cases available for its April sitting.  Two more conferences – January 15 and 22 – could produce grants that could be argued in April without extraordinarily expedited briefing.  It is unclear whether the Court would hear arguments in 12 cases in the sitting if that many were available, or instead to limit itself to 6 arguments in order to allow the Justices to focus on opinion writing at the end of the Term.

As for deciding cases, the Roberts Court remains on its usual pace.  By the Winter break, the Court had issued 8 opinions – 4 signed and 4 per curiam summary dispositions (i.e., without merits briefing and argument).  Only the pace of the first Term of the Roberts Court (O.T. 2005) – which was marked by a very low level of disagreement, and thus fewer separate opinions that slowed the process down – was considerably higher (13 decisions by this point in time).  It’s likely that the pace of decisions this Term would have been higher were it not for the Citizens United case, which promises to be quite divisive.

[CORRECTION: Originally this post referred to McDaniel v. Brown (08-559), which was decided this morning.]