Tom Goldstein wrote this post, with data collected by Jason Harrow.

This is the first of a series of posts on the state of the Term with roughly half of the argued cases still to be decided. As with too many of my posts, this one has a lot of “inside baseball” detail regarding the docket.

In a post in November 2006, I noted that the Court was on “the cusp of the greatest shortfall in filling the Court’s docket in recent memory, and likely in its modern history.” I explained that the Court had “returned from its summer recess in something of a docket crunch, and its pace of granting cases slowed considerably from there.” The Court had put itself in a position in which – given the minimum time required between the date of granting certiorari and the date on which argument could be held – it was essentially impossible to fill the argument calendar.

Subsequently (and I’m not suggesting that causation, rather than correlation, was at work), the Court dramatically increased the pace at which it granted review. In the last two Conferences of December and the three in January, certiorari was granted in twenty-six cases. By contrast, the Court had only granted nine cases during the previous six Conferences.

The Court faced a significant shortfall in its docket because the grants came too late in the Term to set the cases for argument in March. So the March calendar was light, with four days set with only a single argued case. If one were a jaded observer, one might say that the Court was attempting to avoid criticism for canceling argument days in March, as it had done in December as a result of the earlier shortfall in cases.

Ironically, the Court had available in April three more cases than it could fit into its normal schedule (which would call for two cases to be argued in the morning and none in the afternoon). The Justices could have rolled those cases into the October sitting of next Term. But instead, they elected to hold afternoon arguments on three days. Here too, jaded observers might say that the Court’s goal was to minimize criticism for the low number of decisions of the Term, which will still produce 71 rulings after argument, a modern low.

I recount this history because it has consequences for the future. Having set the three “extra” cases granted in January for argument in April, the Court entered February with no cases granted for the upcoming Term. That actually is not unusual. In recent years, the docket has been sufficiently tight that cases granted in January have generally been argued the same Term.

But the Court’s pace of granting certiorari then slowed dramatically, and the Justices now find themselves once again on the brink of a substantial docket crunch, one that is – and this is very difficult to imagine – even more dramatic than occurred earlier this Term. In the nine Conferences since the Court began filling next Term – Conferences that notably span fourteen weeks of petitions – certiorari has been granted in only nine cases. In the same period last year, in which the Court’s slow start at filling the docket created this Term’s shortfall, certiorari was nonetheless granted in eleven cases. So, the Justices are already two cases behind last Term’s slow pace. By contrast, in the same fourteen-week period in early 2005 (during which the Court was filling the docket for October Term 2005), the Court granted certiorari in twenty-one cases.

So here is where things stand now. As noted, the Court has granted certiorari in nine cases for next Term. Traditionally, before the summer recess, the Court fills the October, November, and December sittings. That unfortunately requires more cases next Term than this one, because the Court will not be canceling a day of argument for Yom Kippur, as it did last fall. So the fact that the Justices are two cases behind last Term’s slow start effectively means that they are four behind as an absolute measure. And that is four cases behind a pace that produced the most serious shortfall in memory.

Of course, the Court isn’t required to fill the December calendar before the summer recess, but the limited amount of time available makes it quite difficult to set cases granted at the end of the summer for argument before January. This Term, the Court did set two cases granted at the end of the summer for argument in the second week of December, but heavily expedited briefing was required. The remaining cases were rolled into the January sitting.

There are now only seven conferences – spanning eight weeks – remaining before the summer recess. As noted, over the past fourteen weeks, the Justices granted certiorari in only nine cases. If that pace continued, the Court would enter the summer recess with a total of roughly fourteen granted cases, an exceptional twenty short of the thirty-four required to fill the calendar. That would qualify as a genuine crisis.

Thankfully, there is no real prospect that the Court will come up that short. Nine substantial petitions for certiorari are now pending before the Solicitor General with the realistic prospect that the government will file its brief – and the Justices will act on the petitions – before the recess. (Three other “CVSGs” were issued in April, and are very unlikely to be back from the government and ready for decision before the summer recess.) Based on past experience, however, that collection of cases will produce at most three to six grants. (The CVSGs last Term produced only two grants in June.)

The Court will also get some help from litigants, with some urging from the Clerk’s Office. (A point of clarification in response to a question: the Clerk’s Office isn’t “drumming up business for the Court”; rather, it tries to make clear what filing dates will get a case decided before the summer break, and it will in some cases limit respondents’ extensions if it is clear that the petitioner has filed early in order to ensure that the case is considered before the recess.) Last Term, for example, in the final eight weeks of the Term, the Court granted certiorari in a remarkable eighteen cases. Two of those had been held up for the recommendation of the Solicitor General. In four others, the parties accelerated the briefing. (In three, the petition and/or reply was filed early (05-1126, Twombly; 05-1240, Kato; and 05-1256, Philip Morris v. Williams); in one, the opposition was filed early (05-1382, Planned Parenthood)).

This Term, there is again a push on in the Supreme Court bar to move up cases for consideration before the summer recess. Six pending petitions on my list of those with a “reasonable chance” were filed before the deadline: Nos. 06-1286; 06-1287; 06-1321; 06-1352; 06-1381; and 06-1398. That collection – plus any accelerated by the respondents – could reasonably be expected to produce roughly three to five grants.

It nonetheless is somewhere between unlikely and impossible that the Court will find all the cases it needs before the summer recess. Twenty-five cases are needed, and only six to ten grants can be expected from cases that are out of the normal “phase” because they are pending before the Solicitor General or will be accelerated by the parties. That leaves between fifteen and nineteen cases from the “ordinary” docket in the coming eight weeks, when the Court has granted only nine cases from that pool in the previous fourteen weeks. (It is also worth noting that when the pace of grants accelerates – sometimes considerably – at this time of year in an apparent push to fill the docket, there arises the unfortunate appearance that there are “good times” and “bad times” to have a petition considered.)

None of the Court’s options to make up the shortfall in cases is attractive. The simplest would be to issue grants during the summer recess. The Court has done that only once recently, and it notably did not do so last Term when it needed cases for December. Alternatively, it could slot some of the cases granted at the “long Conference” at the end of the summer for argument in December, as it did with the two cases this Term. Finally, the Court could cancel one or more days in December. It did so last December, but later seemingly sought to stretch out the docket by hearing only one case on three days.

The Court will resist the last option the most, but my personal view is that it is the best. I wrote in my November post that the Justices need to decide whether they are granting certiorari in only a limited category of cases that meet strict criteria or instead are granting at a pace designed to fill the argument calendar – which means potentially taking some cases that might not necessarily interest them in order to fill slots. If they want to adopt the former approach, which is perfectly reasonable, the Court can let argument days go empty.

But the Court seems instead to have adopted the latter approach. It set cases granted at the end of the summer for argument in December, requiring expedited briefing. It spread out granted cases so that only one case was argued on each of four days in March. It held three arguments on multiple days in April, raising the total number of decisions for the Term.

The fundamental problem with this approach to argument scheduling is that the Court is “robbing Peter to pay Paul,” and we are stuck in a recurring cycle of docket shortfalls. Slotting cases granted at the end of the summer of 2006 for argument in December 2006 meant that those cases weren’t available in January 2007, so other cases had to be moved up from February, and still other cases were set for February rather than March, until the deadlines made moving more cases impossible and four days in March had only one argument.

Similarly, slotting extra cases for argument this April means that those cases now aren’t available next October. If the Court slots cases from the summer – whether granted during the summer or at the end – for December, those cases won’t be available for January, and the cycle will continue. That problem is in addition to the further concern that the resulting expedited briefing schedules arguably disserve the Court because they result in less thorough presentations by counsel.

So, if the Court in fact has adopted a goal of generally attempting to fill the argument calendar with two arguments a day, it needs to “catch up” by building up an inventory of sorts of granted cases. The only ways to do that are to grant substantially more (not a realistic option when it will take an extraordinary twenty-five cases to fill the calendar) or to cancel some argument days. The simplest and probably most sensible step would be to cancel the December calendar next Term. The additional break would permit the Court to speed its pace of deciding cases on the merits, an issue I’ll address in one of my upcoming posts.

That seems very unlikely, however. The Court’s docketing this Term suggests that it is quite sensitive to the prospect of criticism for docket shortfalls – sensitive enough that it would not want to cancel an entire sitting. I personally think that, if the Court does in fact have that concern, it is substantially overstated. Few people pay that much attention to the docket, as reflected by the fact that, although we had roughly 35,000 hits yesterday, only twelve people will get to this point in this post. Even more important, the current cycle of expedited briefing, canceled days, and days with only a single argument is likely to generate as much or more criticism.