Further Thoughts on the Docket
on Dec 29, 2006 at 1:16 pm
Further to my previous posts on the state of the Court’s docket, there have been a couple of developments.
First, the Court issued the February argument calendar. The calendar includes three days with only a single argument. Two cases that were initially subject to highly expedited briefing schedules – presumably so that they could be argued in that sitting – were not included in the calendar (Nos. 06-219, 06-278). The Court then granted extensions in those cases for the parties to file their merits briefs.
Second, the Court has not yet issued the March argument calendar. Thus far, there are seven granted cases that are available to be argued in that sitting: Nos. 05-1157, 06-219, 06-278, 06-313, 06-480, 06-5247, and 06-5306. So, the Court could have issued a March argument calendar that included basically once case per day.
Here is what I infer from those developments.
First, in mid-December, the Justices changed course on their approach to the docket, having realized relatively late how significant the shortfall in cases would be – i.e., that merely expediting cases granted in January and February would not permit them to fill the argument calendars for March and April. (That scenario is played out in this post.) That is the most plausible explanation for the Court’s decision not to set all the highly expedited cases for argument in February but rather to roll them over into the March calendar. Otherwise, at this point, the Court would not even have one case per day available for the March sitting.
Second, the Court has not yet settled on the March calendar. Instead, it appears that the Court is going to consider setting some cases granted on the next Conference (January 5, 2007) for argument in the March sitting. That is the most plausible explanation for the fact that it has not yet released the March argument calendar. Intuitively, for reasons of public perception, the Court will want to minimize the number of argument days in which it hears argument in only one case.
The Court’s thinking on that question is likely to be heavily influenced by the number of cases that the January conferences will produce for the April sitting. If it seems likely that there will be roughly twelve cases granted in January (i.e., roughly enough needed to fill April with two arguments per day), and if it also seems that one or more of the cases granted on January 5 could be greatly expedited, then the Court will probably move that case or cases up. The most likely candidate would be a case in which the Solicitor General represents the petitioner, because the Court has greater confidence in the government’s ability to produce excellent briefs on an exceedingly expedited basis. The only petition that fits that description is No. 06-549, EPA v. Defenders of Wildlife.
For what it is worth, my current sense of the January conferences is that — unlike the November conferences — they have a large number of plausible cert. candidates. So there is some prospect that one or more cases granted on January 5 will be argued in March and will be subject to a briefing schedule in which the petitioner’s merits brief is due approximately on February 2.
