Posted Wed, February 12th, 2020 4:11 pm by Adam Feldman
Though briefing just isn’t full in all of the instances that shall be argued earlier than the Supreme Courtroom this time period, curiosity within the court docket’s instances is at an apex. There was a lot of hype main into this time period, as it’s the first full time period for the present Supreme Courtroom, whose bench has been largely in flux since Justice Antonin Scalia’s sudden passing in the midst of the 2015 time period. Elevated media protection has additionally put a highlight on the court docket’s integral position in resolving high-profile points, such because the potential launch of President Donald Trump’s tax returns and the legality of the president’s immigration coverage.
One measure of public curiosity in a given case is the variety of amicus briefs filed. Amicus briefs filed on the deserves after instances are granted might be differentiated from amicus briefs filed in assist of cert petitions (which present teams’ curiosity within the court docket deciding specific points). Circumstances this time period have averaged excessive numbers of each cert-stage and merits-stage amicus briefs. Particular traits are additionally evident within the justices’ alternative of instances for this time period. These analytic measures present perception into attorneys’ methods for convincing the court docket to listen to their instances and into the justices’ pursuits in taking them.
The chart beneath reveals how the justices have granted cert petitions in clusters to date this time period.
Probably the most granted petitions filed throughout the identical week, three, had been filed in the course of the weeks of October 21, 2018, and February 3, 2019. The court docket additionally granted two petitions filed throughout the identical week for a number of weeks between October 21, 2018, and February 3, 2019, highlighting the significance of strategically timed petition submitting.
The justices took a median of 168.72 days from the submitting date to grant petitions for argument this time period. (It’s value noting that this time interval might be drawn out if the respondent requests an extension to file their transient or the solicitor common is invited to share the views of the federal authorities).
A complete of 42 petitions, the vast majority of these granted for argument this time period, had been granted in a window of 70 to 170 days from the time the petitions had been filed. Two instances, each involving whether or not the president can stop the discharge of his tax returns, took the justices fewer than 30 days to grant. On the alternative finish of the spectrum, Opati v. Republic of Sudan — taking a look at whether or not the Overseas Sovereign Immunities Act applies retroactively, thereby allowing restoration of punitive damages below 28 U.S.C. § 1605A(c) towards overseas states for terrorist actions occurring previous to the passage of the present model of the statute — was granted 483 days after the petition for cert was filed.
For many instances, extra time elapsed between cert grant and oral argument than between petition submitting and the day the justices granted the petition. Nonetheless, the alternative was true for a nontrivial variety of instances, 22. The next determine reveals the distribution of time between petition grant and oral argument for instances granted for argument this time period.
The justices scheduled oral argument in 10 instances for between 120 and 140 days from cert grant and in 10 different instances for between 180 and 200 days from cert grant. Wanting on the ratio between the size of time from petition submitting to cert grant and from cert grant to argument date, the case with the smallest ratio was McKinney v. Arizona. This case was granted 109 days after the petition was filed and scheduled for oral argument 184 days after the cert grant, for a ratio of .59. This may be in comparison with Google v. Oracle, wherein the justices took 409 days to grant the petition after submitting and scheduled oral argument within the case 176 days after cert grant, for a ratio of two.32.
Circumstances this time period have averaged a excessive variety of amicus briefs each on the cert stage and on the deserves. Case averages by amicus social gathering sort are proven beneath.
Deserves instances have averaged simply over 12 amicus briefs to date this time period, with petitioners averaging 6.66 briefs and respondents averaging 5.15 briefs. R.G. & G.R. Harris Funeral Houses Inc. v. Equal Employment Alternative Fee has essentially the most deserves amicus filings with 86, adopted by June Medical Providers LLC v. Gee with 70 and Bostock v. Clayton County, Georgia with 68 (for a deep dive into instances with numerous amicus briefs in earlier phrases, see this paper). As a result of we don’t have all of the amicus filings in all instances for this time period, the averages within the chart above in addition to this rating of instances with essentially the most amicus filings might shift earlier than the time period is full.
For instances already argued and with at the least one amicus transient filed on either side, the case with essentially the most amicus briefs filed on behalf of petitioners relative to these filed on behalf of respondents is the consolidated case of Maine Neighborhood Well being Choices v. U.S., with 9 petitioner amicus briefs and one respondent amicus transient. The case with essentially the most respondent amicus briefs relative to petitioner amicus briefs, additionally at 9 to 1, is U.S. v. Sineneng-Smith.
The amicus filings to date this time period embrace many filed by repeat gamers who’ve been energetic in Supreme Courtroom litigation for years. A have a look at counsel of report for all merits-stage briefs, each for amici and for events to the dispute, filed in instances this time period bears this out.
Up to now, Brianne Gorod of the Constitutional Accountability Middle is counsel of report on essentially the most briefs, with 12. She is adopted by Paul Clement from Kirkland & Ellis, who’s counsel of report on a mixture of events’ briefs in instances he argued (or will argue) and amicus briefs; Lawrence Joseph, who frequently recordsdata amicus briefs on behalf of varied teams (for instance); and the Cato Institute’s Ilya Shapiro — all counsel of report on a short in 9 instances. Simply behind these three with eight briefs apiece are New York solicitor common Barbara Underwood and Williams & Connolly’s Lisa Blatt.
The court docket’s selections in lots of instances this time period are extremely anticipated. The big presence of amicus filers in addition to veteran attorneys representing events is a testomony to this. Based mostly on the justices’ voting patterns in extremely anticipated selections over the previous couple of phrases, we are able to anticipate a number of of those instances to be determined by 5-Four votes alongside ideological traces. By the tip of the time period we’ll know with extra readability whether or not these ideological divisions will persist, or whether or not this court docket will rise above the ideological fray in a fashion articulated by Chief Justice John Roberts on a number of prior events.
This submit was initially revealed at Empirical SCOTUS.
Beneficial Quotation: Adam Feldman, Empirical SCOTUS: About this time period: OT 2019, SCOTUSblog (Feb. 12, 2020, 4:11 PM), https://www.scotusblog.com/2020/02/empirical-scotus-about-this-term-ot-2019/