On the Docket and Briefing Schedules

Following yesterday’s release of the April argument calendar, it’s now possible to more fully examine one tangential effect of the docket crunch at Court – namely, the widely varying amounts of time attorneys receive following a grant of certiorari to brief their cases and prepare for oral argument. As Jason noted previously (see here), the Justices will hear 70 oral arguments by term’s end, a modern low for the Court. In spite of this relatively light caseload (or, in some respects, because of it), many attorneys this term have or will receive much less time than usual to brief their cases in advance of argument.

The greatest impact, not surprisingly, falls on attorneys scheduled to argue in the April sitting. From the date certiorari was granted, counsel in three cases will have only 96 days between grant and argument, while the group as a whole will enjoy an average of 101 days. By comparison, attorneys who argued cases during the Court’s first sitting in October enjoyed an average of 181 days between grant and argument, and all counsel appearing during the November and December sittings had at least five months to brief and prepare. Not including the one Original suit argued in November, the average period between grant and argument over the course of the entire term was 136 days. (The full results and analysis appear after the jump.)

Average number of days between grants of certiorari and oral argument:

• October sitting: 181.4 days
• November sitting: 175.3 days
• December sitting: 161.3 days
• January sitting: 108.5 days
• February sitting: 138.4 days
• March sitting: 113.3 days
• April sitting: 100.8 days

Overall

• Average amount of time: 135.6 days
• Median amount of time: 119 days
• Longest amount of time: 252 days (Logan v. United States; granted Feb. 20, 2007, argued Oct. 30, 2007)
• Shortest amount of time: 96 days (Meacham v. Knolls Atomic Power Laboratory; granted Jan. 18, to be argued April 23), (MetLife v. Glenn; same) and (Taylor v. Sturgell; granted Jan. 11, to be argued April 15)

To put these numbers in some context, the typical briefing schedule outlined in the Court’s rules provides at least 112 days between grant and argument – 45 to file the petitioner’s brief, 30 for the respondent’s, 30 for a reply, and at least a week more until the actual argument. (Prior to OT07, the briefing schedule was ten days longer.) By our count, counsel in 32 cases have or will enjoy a less than full briefing schedule this term, either because the Court directly set shorter filing deadlines, or because the timing of oral argument pushed up the date by which the petitioner would ordinarily have to file its reply. Put another way, the briefing schedules in nearly half the oral arguments were shorter than envisioned by the Court’s own rules.

Of course, given the Court’s traditional three-month summer recess, it is almost inevitable that attorneys arguing in the winter and spring will enjoy less prepartion time than those arguing in the fall. In addition, some petitioners strategically attempt to have their cases considered during the January conferences, knowing full well they may have to argue in April should certiorari be granted (although no such examples appear to exist this term). At the same time, some might say the Court has magnified the disparity by granting cases in relative fits and spurts.

As readers may recall, the Court entered OT07 without enough cases to fill its December argument calendar. As a result, numerous argument slots not only went unfilled during the first three sittings, but all twelve cases scheduled for January were placed on expedited briefing schedules. Then, after granting only eight cases in October and November combined, the Justices granted nine cases the first week of December, all of which were slated for argument in March, and sixteen in January, twelve of which are on the April calendar (all again on expedited schedules).

Unlike last term, when the Court scheduled numerous afternoon arguments in the spring, the Justices pushed the remaining January grants over for argument next October, potentially reducing the need to again play “catch up” once OT08 begins. Needless to say, however, the pattern could reemerge next fall if the pace of grants slows in the coming months.