Petitions to Watch in OT07 | A Mid-Term Update

As we near the midway point of October Term 2007, we thought it worthwhile to review the accuracy of our regular feature, “Petitions to Watch” (PTW). As readers of this blog know, in advance of each conference we publish a list of all petitions on the Court’s ‘paid’ docket that Tom has deemed to have at least a reasonable chance of being granted. While the number of petitions on the watch list varies from conference to conference, PTW over the course of a term features the roughly 15% of paid petitions deemed to be most likely candidates for certiorari. While PTW’s main goal is to anticipate every case the Justices will grant, it also hopes to include as few petitions as possible that are eventually denied.

Since the start of the term, beginning with the “long conference” in late September, the Justices have granted certiorari in 45 cases (though three were dismissed before argument) from the Court’s paid docket. Of those 45 cases, 37 were featured in PTW following their original distribution to conference, for an ‘accuracy’ rate of 82.2%. (Note: one petition, No. 07-110, Arave v. Hoffman, was selected but mistakenly left off the published list.) After accounting for an additional two petitions featured following the government’s submission of an invitation brief, the rate climbs to 86.7%. These figures are almost identical to those of OT06, when PTW flagged 84% of the eventual grants.

To put the figures in perspective, the only cases granted since the start of the term that did not appear in PTW were MeadWestvaco v. Ill. Dept. of Revenue (06-1413), Preston v. Ferrer (06-1643), Boulware v. United States (06-1509), Crawford v. Marion County Election Bd. (07-21) and Indiana Democratic Party v. Rokita (07-25) (consolidated), Plains Commerce Bank v. Long Family Land & Cattle (07-411), and Engquist v. Oregon Department of Agriculture, (07-474).

As for the other measurement of success – overinclusiveness – PTW’s performance in the first half of OT07 is also nearly identical to the previous term. Since the start of the term, PTW has listed 160 petitions as having a reasonable chance of being granted. Of those, 34 were granted plenary review, while an additional four were either GVR’d or summarily reversed, for combined rate of 23.1%. Of the remaining petitions, 106 were denied (66.3%), four were CVSG’d (2.5%), two were dismissed (1.25%), and eleven remain outstanding (6.9%).

As the numbers suggest, between two-thirds and three-quarters of all petitions featured in PTW will eventually be denied. But by comparison, the aforementioned grant rate of petitions we do feature (23.1%) dwarfs the rate of those we do not. Between the end of June and mid-November, for example, the Court received more than 660 paid petitions for certiorari. Of the more than 570 that did not appear in PTW, only three were granted – for a success rate of 0.53%. In sum, while petitions featured in PTW are far from guaranteed of being accepted, those left off the list remain – statistically speaking – very unlikely to be granted.