OT 2007 Calendar and Update On State of the Cert. Docket
on Jun 19, 2007 at 11:16 am
The Supreme Court has released (but not yet posted on its web site), its calendar for the October 2007 Term.
For those keeping watch on the state of the docket for next Term, the Court has now granted cases requiring 21 hours of argument (including yesterday’s grant), which will just about fill the October and Novermber sittings if the Court follows its tradition of hearing two cases per sitting day (11 days of argument are scheduled, providing 22 hours of argument time).
As Tom has explained in a prior post, this will lead to serious problems next Term if the Court follows its past practices. There is one remaining conference day on this Term’s schedule that might result in additional grants for next Term. There are 13 hours of argument slots left to fill in the November and December sittings. Presumably the Court will not fill those slots in its final conference. Were the Court to follow tradition and not issue any more grants until it returns from its summer recess, it will be granting cases at the end of September for argument in the end of November.
That would give the parties about 9 weeks to brief the cases for the December sitting, which starts this year on November 25. Even under the new, somewhat expedited, briefing schedule the Court envisions in its proposed amendment to the Rules, ordinary briefing requires 16 weeks. Requiring an entire sitting’s worth of cases to be expedited to such a degree would be extraordinary.
Tom has suggested alternatives the Court may consider, including voting during the summer to issue additional grants. Even this is unlikely to avoid expedited briefing. If the Court hopes to grant any substantial number of cases during the summer, it will likely have to wait for petitions to accumulate. Moreover, the process of voting on the petitions is likely to take some time. While we do not know how the Court would conduct a mid-summer conference, it seems unlikely that the members would meet in person, given that many Justices spend most of the recess outside of Washington. The process of discussing and voting on petitions remotely would seemingly take some time. The net result may be that even if the Court grants cases in the summer, the orders will not be issued until relatively late in the summer, which would still require a significantly expedited briefing schedule.
At the same time, it seems quite unlikely that a mid-summer conference would fill the December calendar. Last year, the Court granted only 9 cases from the full summer conference list. Moreover, it may well be that more than the usual 4 votes would be required to grant cert. via remote voting during the summer.
Given all this, the Court would very likely be required to fill the remaining December slots at its traditional summer conference at the end of September, requiring substantially expedited briefing for those cases. Alternatively, the Court could decide to hold the December sitting with however many cases it grants at a mid-summer conference (perhaps holding only a single argument on one or more days in December, as it did during the February sitting this past Term), and then issue grants at the end of the September for the January sitting (which will, by that time, be almost exactly 16 weeks away).
All of this, of course, is rank speculation. We will just have to wait and see what the Court ultimately decides to do.
