Breaking News

An Update on the State of the Docket

A couple of preliminary notes about this post: Like a similar post I wrote earlier in the Term, this one is very “inside baseball” on the Court’s docket. In addition, the post shouldn’t be misunderstood as a criticism of the Court’s approach to granting cases. I don’t really view that as the role of the bar, or the blog. Rather, the post takes the Court’s approach as a given, and notes the consequences that follow from it that the Court will have to address, in turn.

* * * * *

When the Justices meet in Conference tomorrow to consider petitions for certiorari, they will be on the cusp of the greatest shortfall in filling the Court’s docket in recent memory, and likely in its modern history.

I previously discussed the timetable between granting petitions and argument in those cases in this post.

The Court returned from its summer recess in something of a docket crunch, and its pace of granting cases slowed considerably from there. By this point last Term, the Court had granted 26 cases (10 from the “Long Conference,” plus 16 more in the first 6 Conferences of the Term). But this Term, the number is only 18 (9 from the long conference, but only a total of 9 in the six succeeding Conferences).

In fairness, during the same period during the October Term 2004, the Court granted certiorari in 18 cases, which collectively filled only 18.5 hours of argument. But the Court’s docket was considerably fuller that Term, and the failure to take many cases did not make it impossible to fill the argument calendar. The Court granted 8 cases in the OT2004 long Conference, and (because the docket already had a substantial number of granted cases) the new grants were argued between January and March 2005. During the first six conferences after the long Conference in OT2004, the Court then granted 10 cases, all of which were set for argument in the ordinary course in late February or March 2005. This Term, by contrast, the cases granted during the long Conference will be argued in December or January because those sittings were not full. Those granted between the long Conference and this point will all be argued in January and (presumably) early in the February sitting (which has not yet been set).

This Term, the Court currently needs four hours of argument (likely, four new cases) to fill its February calendar. Cases granted tomorrow can be slotted into that sitting only if they are expedited. The standard briefing schedule calls for 122 days (115 days of briefing, plus seven days between the filing of the reply brief and the argument). But there are only 88 days between tomorrow and the first open date in the February calendar (Feb. 27), which means cutting a month from the briefing schedule.


The Court could thus grant certiorari in a total of four cases on December 1 and December 7 (the two remaining Conferences before the Winter recess) and fit them into the February sitting with substantially expedited briefing. There would of course be a cost in terms of the quality of the briefs, including because they would be prepared over the holidays.

But that is the least of the Court’s problems. If the Court slots cases granted in December into the February sitting, it will have an even more serious scheduling problem for the March sitting. The Justices are not scheduled to meet again after December 7 to consider additional cert. petitions until January 5. There are only 73 days between January 5 and the first day of the March sitting (Mar. 19). Fully one-third of the briefing schedule would have to be eliminated for a substantial number of cases in that scenario.

In a sense, things only get worse from there. The three January Conferences have traditionally been used to fill the April calendar (and even then with some difficulty, because it takes 12 cases to fill that sitting). In this scenario, however, the January Conferences would be used instead to fill the March calendar. If the Court intended not to cancel the April sitting outright, April could be filled only with cases granted beginning on February 16 (something that has never happened before, so far as I am aware), and there are only 59 days between February 16 and the first day of the April calendar (Apr. 16), so that one half of the briefing schedule would have to be eliminated.

What to do? If the Court does have a goal of filling its argument calendar – and it may well not, and that may be a considered decision – there is very little that can be done. Perhaps the best step would be to hold one week of arguments in February, not two. (Truly, the best step would probably be not to have arguments that month at all, to build up a group of granted petitions, but that is very unlikely.) If only one week of arguments were held in February, then the Court could reasonably fill one-half or more of the March sitting before the Winter recess: two of the current granted cases would move to March (and would be briefed on essentially a standard schedule), joined by approximately four cases to be granted in December.

It is worth pausing on the prospect of not holding arguments in the April sitting. At times, that has been considered as a vehicle for allowing the Justices to focus on opinion writing in the final months of the Term and avoiding the need to decide cases argued in April by the end of June. But that option has generally been discussed in the context of simultaneously hearing more cases earlier in the Term, not reducing the size of the docket substantially.

Most fundamentally, the Court has to reach some firm conclusions regarding its intention with respect to the docket, and it indeed may have done so already. On the assumption that the Justices are attentive to the state of the docket, it does seem clear that they are applying a rigorous standard in granting certiorari and do not intend to relax that standard simply for the sake of filling the argument calendar.

A considered decision to take that approach is entirely reasonable. But if that is the Court’s conclusion, it should reach the next logical conclusion: the argument calendar is not going to be filled and the institution is disserved by applying expedited briefing schedules to cases as if it were. To put the point another way: on the one hand, the Court is not taking enough cases to fill the argument calendar; on the other hand, it is scheduling briefing as if it were. The failure to adapt the briefing schedule to the smaller size of the Court’s docket produces expedited briefs that are less thorough and helpful to the Justices and creates a recurring cycle in which it is necessary to apply still more expedited schedules. As discussed above, at the current pace, the timetable for producing briefs for the upcoming argument calendars is 88 days (Feb.), 73 days (Mar.), and 59 days (Apr.).

To be clear, this is not an argument that the Justices should be taking more cases. (I have my own views on that issue, but they are colored by the self-interest of someone who frequently files cert. petitions.) Rather, the point is that if the Justices have decided to take fewer cases, that decision calls for a related decision on how to allocate cases to the argument calendar.