Yesterday the Senate Judiciary Committee announced that the confirmation hearing for Judge Neil Gorsuch will begin on March 20, creating at least the possibility that, if confirmed, Gorsuch could join the court’s current eight justices in time for the April sitting, which begins on April 17. Today the justices released the calendar for the April sitting, during which the court will hear 13 arguments – including an important religious liberty case that had been granted in January 2016, nearly one month before the February 13, 2016, death of Justice Antonin Scalia, whom Gorsuch would succeed on the court.
The justices agreed to review Trinity Lutheran Church v. Pauley on January 15, 2016. Under the court’s normal procedures, the case – in which a Missouri church is arguing that its exclusion from a state program that provides funds to nonprofits to resurface their playgrounds with rubber from recycled tires violates the Constitution – would have been argued in either April or fall of 2016. But the case (along with Murr v. Wisconsin and Microsoft v. Baker, two others granted that day) remained conspicuously absent from oral argument calendars through the end of 2016 and into the beginning of 2017. Although there is no way to know with certainty what accounted for the delay, one possibility was that the justices were hoping to avoid a 4-4 tie, in the absence of a ninth justice. On February 3, three days after President Donald Trump announced the Gorsuch nomination, the court released its March calendar, which included Murr and Microsoft but not Trinity Lutheran.
Of course, there is no guarantee that Gorsuch will be confirmed in time for the April sitting. As Michael Gerhardt, a law professor who is an expert on the nomination process, explained for this blog earlier this month, Democrats could deploy a variety of tactics to try to slow down or even block Gorsuch’s nomination.
With 13 oral arguments, the April sitting will be the busiest of the October Term 2016: Although the March calendar will have 12 oral arguments, the previous five sittings of the term all had either seven (December and February), eight (October), or nine (November and January) oral arguments. On April 17, the court will also host a relatively rare afternoon oral argument, in California Public Employees’ Retirement Systems v. ANZ Securities; the justices held two afternoon oral arguments during the October sitting, but (because of federal and religious holidays) the court only heard oral arguments on three days during that sitting.
Here is a complete list of the cases slated for oral argument in April, along with a brief summary of each:
Three other cases granted in mid-January — Epic Systems Corp. v. Lewis (granted and consolidated with two other cases, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA, on January 13), National Association of Manufacturers v. Department of Defense (granted January 13), and District of Columbia v. Wesby (granted January 19) – were not placed on the April calendar and therefore presumably will be scheduled for oral argument in the fall.
[Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in California Public Employees’ Retirement System v. ANZ Securities, Inc. and Henson v. Santander Consumer USA, Inc. and counsel to the respondents in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County. However, I am not affiliated with the firm.]