Will the Election Help Normalize Business at the Supreme Court?

Prior to the Presidential Election there was profound uncertainty about the future of the Court.  Before election night many believed Clinton would take the presidency and the democrats would look to move on the Garland nomination or otherwise nominate another candidate to the Supreme Court.  With the Trump victory an entirely new chapter will be written in this saga – this time likely without the inclusion of Judge Garland.

With the empty seat on the Supreme Court since February, this pall of uncertainty led to important decisions and indecisions.  Some speculate that Scalia’s death led Dow Chemical to settle a class-action for fear of a potentially adverse outcome.  This uncertainty was the likely impetus leading general counsels at 44 top companies to sign a letter supporting a Senate vote on the Garland nomination.  Indecision plagued the Court leading to more evenly divided decisions in 2015 than in any other recent Term, and the uncertainty as a product of this indecision was seen as a threat to decisions in a wide array of areas.

The internal dynamic of the Court was also not left unscathed as the seven oral arguments scheduled for December are the fewest number cases set for argument in the middle of a Supreme Court Term in recent memory.

With the election complete and the likelihood of a new nomination on the horizon though, things are likely to shift and are already beginning to do so.  On Friday December 2nd, the Court granted cert in seven cases (three of which are consolidated in one argument).  This hints at a resurgence in the Court’s willingness to tackle a wider slate of issues and a potential return to business (at least somewhat) as usual.

While the Court receives thousands of cert petitions, it is still passive to the extent that cases need to come to this institution.  With business leaders’ uncertainty and public skepticism regarding to Court’s ability to resolve contentious cases with eight members, there was the possibility of apprehension on the part of individuals who would otherwise take cases to the Supreme Court which would lead these people and companies to resolve their disputes without further litigation (just as with the Dow Chemical example).

Now there seems to be a resurgence of action in the Supreme Court and it may have to do with a renewed confidence in the Court’s ability to take care of business.  Since the election the Court’s clerks filed 463 new petitions.  220 petitions for certiorari were entered in the Court’s docket books since November 8th.   The figure below tracks the number of petitions between November 4th (four days prior to the election) and December 1st.


77 of the post-election petitions were pro-se or written by the petitioners themselves who, generally in these cases, are incarcerated and/or lack the funds to hire a petitioning attorney.  28 petitions were filed by the Federal Defender’s Office.  This still leaves a large number filed on behalf of businesses and paying clients.  Add to these the 48 discretionary amicus briefs filed since the middle of November and the discretionary Supreme Court business appears to be booming.

In terms of these amicus filings, these clustered in ten cases as can be seen in the chart below.


When we look at the combination of discretionary filings from cert petitions and amicus briefs, we see many Supreme Court regulars looking to partake in the proceedings.  Grouping amicus briefs and cert petitions together, we can see many names well-known to Court on the filings.  The chart below looks at the attorneys who filed more than one cert petition and/or amicus brief in this post-election period.


Among those with multiple filings in this period are various recognizable repeat players.  Along with often paralleling this list, the law firms and interest organizations with multiple filings over this period are some of the most experienced in Supreme Court practice.


Another interesting point of note is the many attorneys from the Twitter-verse that filed briefs or petitions during this period.  These include two cert petitions from Bob Loeb at Orrick (@BobLoeb), a cert petition from Dan Geyser at Stris & Maher (@DanGeyser), an amicus brief by Joseph Carl Cecere (@CecereCarl), a petition from Elbert Lin (@ElbertLin)…and this is only from my limited knowledge of the Supreme Court practitioners with Twitter accounts.

These data appear to point to a potential bidirectional upsurge in the Court’s business with more businesses and individuals seeking to bring cases to the Court and with the Court seeking to take on more cases than the small set of grants up until this point in the Term.  The election is still very recent event, we are far from hearings on a potential nominee, and we very well may not see a new Justice seated before the end of the Term.  Still, the impact of a potentially more certain future can and likely is pushing the Court both from inside and out to begin to return to a more characteristic approach to its business.

On Twitter: @AdamSFeldman

Data Collection and analysis with the aid of: @SamuelPMorse


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