State of the Docket: November 2007

In a post here about the new StatPack, I explained a few changes in our chart showing grant rates by Conference. This entry uses that new chart to examine the state of the docket (as we have done in the past). You can download the grant chart to which I am referring separately from the StatPack here.

A first interesting thing to note is that the Justices’ 17 grants this year from the Long Conference – which seemed huge compared to the 10 and 11 grants during the previous two terms – was actually more of an accurate reflection of a steady grant rate than usual, considering the number of petitions considered at that Conference. Working at a constant rate, the Court would grant 17 or 18 cases from the Long Conference if it were granting 70 cases each Term and 19 if it were to grant 78 (those can be seen by looking at the two trendlines on the aformentioned chart). The 10 and 11 grants from the past two terms, which corresponded to less than one grant per week, were thus quite low relative to a steady rate.

But, the Court has granted just four cases since the release of that summer list; a constant rate with a goal of 78 cases would have yielded 9 grants in this time period, and for 70 would have yielded 8; OT05 had 11 grants during the same period, and OT06 had 9. Accordingly, whatever overflow the Court built up over the summer has all but disappeared. Here is where we stand:

Assuming a return to two arguments per day, the Court has 25 available argument slots this term: 1 more in February, and then 12 slots in both March and April. It thus needs to grant at least 13 more cases before the December sitting ends on December 10 in order to fill March’s calendar, and needs an additional 12 from the three January Conferences to fill April. In other words, the Court needs to go from granting at a recent rate of less than one per week to over 2.5 per week between now and December to fill March, and then maintain a pace of over 2 grants per week during the January Conferences to fill the April calendar.

By comparison, the Court was in a nearly identical spot last term, though the docket is in slightly better shape this year because of the Court’s reduced caseload this fall. Last term, the Court ended up granting only 8 cases between the first week in November and the Winter Recess, and, since there were fewer cases held over, it did not fill its February or March argument calendars; this Term, only the March calendar would appear in jeopardy of not being full. Upon returning from the Recess, a large uptick in grants last January resulted in a very busy April for the Court.

Of course, such talk of trendlines and grants per week can be somewhat academic and even unfair, because the Court does not control the cases presented to it, nor when the most cert.-worthy cases are going to be considered: Conference dates are controlled entirely by when the parties file their cert.-stage briefs. Hence, as can be seen by looking at our “Petitions to Watch” lists for each Conference, there seem to be a plethora of quite serious cert. petitions that will be considered at Conference some weeks, and for others there is a real dearth of options. Additionally, experienced advocates sometimes arrange their filings so that cases of theirs will be considered at some specific Conference when they believe the petition is more likely to be either granted or denied, which may exacerbate the boom-or-bust pattern of grants that we’ve seen of late.

But all that aside, the reality is that the Court argued a record-low 71 cases last term, and it took 26 grants between early November 2006 and January 2007 to get there (the Court’s docket was further deflated last term by two cases dismissed last spring before argument). One year later, the Court once again finds itself in essentially the same position.