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An Early Look at the OT08 Docket: A Return to OT83?

Today the Supreme Court granted 8 new cases for its OT08 docket, its largest number of grants from a single Conference since the Long Conference last fall. Given that the Court held over four cases granted at the end of January, that puts a whopping 19 cases on the OT08 docket already. We’ll do a full StatPack update after any opinions are issued tomorrow and Wednesday, but the updated granted cases chart can be viewed here.

To put this in perspective, it took until June 11, 2007 for the Court to place that many cases on the OT07 docket (that day, it added three cases to bring its OT07 total to 20). That means it took 11 more weeks and 10 more conferences last term to add the same number of cases to the OT07 docket as they have already for OT08. In fact, heading into Summer Recess last year, the Court had only 26 total cases on its docket, just seven more than it already has for OT08 right now.

While the holdover of four cases from the batch of grants out of the January 18 Conference is part of the reason for such a robust docket, the rate that the Court is granting cases remains far higher in 2008 than it’s been in recent memory. Consider that since returning from Winter Recess on January 4, the Court has granted 31 cases in the first two-and-half-months of the year. If the Court continued on this pace – admittedly, this is perhaps an unrealistic assumption – they would hear roughly 150 cases next Term. That number is not unprecedented, as the modern record for oral arguments was set in the 1983 Term, when the Court heard 159 cases according to But since then, the total cases heard each term has steadily declined, reaching the nadir with this term’s 70 arguments, a decline of more than 50% in 25 years. Given that trend, an immediate jump back to hearing 150 cases in a single term would be a stunning turnaround (and that’s an understatement). Yet that is precisely what the Court is now on pace to do.

It’s too early to tell what’s responsible for this uptick in grants. Perhaps the Justices have made no changes to the way they evaluate cases and have simply been presented with a greater number of cert.-worthy petitions, and our “Petitions to Watch” lists (archive here) have indeed featured more cases than they have in the past. On the other hand, though Tom’s criteria for choosing cases for the watch list have not changed, the rate at which the Court is granting cases on the list has increased. Over the last several years, the Court has granted about 20% of the cases we feature for PTW, but that number has risen substantially over the last seven Conferences, since the start of 2008. In those seven Conferences, we’ve featured 83 petitions, and 29% have been granted, with an additional 6% being sent to the Solicitor General for his views.

It’s too soon to tell if this is a long-term trend or whether the grant rate will slow down once again for any number of reasons. For now, however, it appears that Court-watchers can look forward to an unusually full docket next Term.