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The Long Conference and the December Sitting

This is a highly technical post about the Court’s calendar, not for the faint of heart or those with a life.

Prior to departing for the summer recess, the Court had granted certiorari in 31 cases — accounting for 29 hours of argument time — for the October 2006 Term. Here is the list.

The October, November, and December sittings include 16 argument days, which is 32 hours of argument under the Court’s usual schedule. By default, the Court’s schedule therefore would require 3 hours of additional argument in order to fill the December calendar.

The Court, however, added an extra hour of argument to October. So, there are now 4 hours available in December.

As the Court’s September 25 “long conference” at the conclusion of the summer recess approaches, the question arises whether the Court intends to use cases from that Conference to fill the December calendar.

If past is prologue, the answer to that question is “probably not.” The Court has not in its modern practice attempted to grant cases at the end of September that will be argued in the December sitting.

The logisitcal reasons for that past practice are pretty obvious. Based on past practice, the Orders List granting cases from the September 25 conference will be released on September 26. Those cases would be argued in the second week of the December sitting, which commences on December 4. The 4 “new” cases would presumably be argued on December 5 and 6.

Between September 26 and December 5, there are 70 calendar days. Under the Court’s default rules, cases take a minimum of 122 days to brief and hold argument — 45 days for the petitioner’s brief; 35 days for the respondent’s brief; 35 days for the reply brief; and a minimum 7 days between the reply and argument. It is very difficult to carve off 52 days, nearly 2 months, from the basic briefing schedule.

Indeed, even cases granted from that Conference to be argued in the January sitting (which starts 5 weeks after the 2d week of the December sitting) are subject to expedited briefing. Between September 26 and the start of the January sitting, there are only 104 days. (A small procedural point, as if this post weren’t “inside baseball” enough already: for cases set for January from this Conference, the Court no longer specifies the expedited schedule, leaving 35 days for the respondent and permitting the petitioner’s counsel to divide up the remaining time between opening and reply briefs.)

It technically could be done, however, and the question before the Court is whether to do so or instead to cancel either a week of the December sitting or at least the currently open 2 days. For the practical reasons described above, its inclination will be to cancel days, as it has in other sittings in previous Terms. But it may have some concern that there would be public criticism, perhaps particularly in light of the fact that the Chief Justice has indicated his interest in exploring the possibility of expanding — rather than contracting — the size of the docket. I personally view such a concern with public relations to be overwrought. Very, very few people pay such close attention to the Court’s calendar. (That you are still reading this, for example, is a shock, and you ought to seriously reconsider your priorities.) And the Court can always add arguments later, as it added one case to the October calendar already.

Another concern would be that adding cases to the December calendar would effectively “steal” some of the 10 cases needed to fill the January calendar. The next Orders List granting cases won’t be issued until October 6 at the earliest, 10 days later (several important upcoming dates are listed in our calendar on the right side of the screen). So far as I can tell at this point, that Conference looks very weak and may not generate any grants at all, other than the inevitable group of cases relisted from the long conference for further consideration. Put another way, greatly expedited briefing from the summer conference might defer the problem by a month, not eliminate it.

It is interesting that the Court could have avoided this problem by granting 4 petitions earlier in September. I wrote in an earlier post that the Court had signaled its intention not to repeat the 1999 “summer grants.” Others had received contrary signals, however. The issue must have been the subject of some discussion, and if the Court thought it was truly essential to fill the December calendar, it likely would have addressed that concern by granting cases earlier this month.

So, my best bet is that at 10am Eastern on September 26 the Court will issue an Orders List granting certiorari in between 8 and 12 cases, with no order specifying an expedited briefing schedule. As a consequence, those cases will be set for argument in January. If the Court then still does not have enough cases to fill January — i.e., if it takes 8 or fewer cases, rather than the 10 needed — it will eliminate the 2d week of the December sitting. Otherwise it will keep all the cases it currently has in December, filling the first week and the first day of the second week.