roger friedman

These are excellent points, and I actually sent Peggy an e-mail this morning regarding the SG’s practice of making sure that CVSGs and CFRs are completed in time for the June conferences. There does seem to be some disagreement from those who have worked closely with or in the SG’s office, however, about whether it tries to complete CVSGs and CFRs in time for the October or January conferences, or both, and I haven’t been able to track down an answer to that question yet. I do agree, however, that failure to account for this practice could artificially bump up the numbers for June and either October or January.

My post says that if the Court’s current pace continues — which I then say is almost certainly not going to be the case — “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.” I then say that that “If they want to adopt the former approach [of applying quite strict standards], which is perfectly reasonable, the Court can let argument days go empty.”

So I tried to distinguish what Richard describes as “the shrinking of the docket” as “perfectly reasonable,” versus having less than one-half of the argument slots full, meaning that the docket would collapse to roughly thirty-five cases for the entire term, which I say would be a “genuine crisis.” If Richard doesn’t think that would be a crisis, then we do have an actual point of disagreement.

-tg

A couple questions and a thought.

1. Did the Cordrays account for the fact that the SG responds to all CVSGs no later than necessary in time for the Court to consider them during the months of June (for one part of the year) and October (for the other part of the year). The addition of those cases to the order lists during those months might, standing alone, lead to a cert grant bump up.

2. I wonder whether when running up to a deadline (late January for cases to be heard that Term or late June for cases to be granted before the summer break) the Justices dispense with the practice CJ Rehnquist reportedly initiated in the early 90s of automatically delaying (by relisting) cases in which the cert petition received only the minimum four votes necessary for a grant at conference. The reported purpose of this practice, developed at a time when there was a concern with too many cases, was to allow those who voted for cert to reflect a bit more. Here, too, if the 4-vote relisting practice is still otherwise the norm, yet excused when time is otherwise not so neutral (January, June, and possibly a bit of October thrown in), that could lead to a bump as well. Of course, there is a difference between the two bumps. The latter would in fact suggest an effective lowering, albeit through a procedural shift.

One final thought. Tom’s original post described the shrinking of the docket as portending a “genuine crisis.” I don’t see it. Or at least I don’t perceive any crisis to the nation or its laws. While there are of course some cases denied that I may personally wish would be granted, there are still a bunch of cases on even the Court’s current “shrunken” docket that could be eliminated without any loss at all. I expect the Court’s docket to ebb and flow over time depending on a host of factors external to the Court itself. That seems entirely appropriate. The current “crisis” may largely be one for the ever-expanding private Supreme Court Bar tussling over a shrinking docket. There are a lot of law firms (and law school clinics) these days circling around the same cases and only so many hours of argument to be presented and amicus briefs to be written.

Thanks.