The Supreme Court currently grants around eighty cases per year for its merits review. These cases tackle issues that often divide federal courts. The Court takes up some cases due to the national importance of resolving certain issues. With some of these cases that deal with issues that divide segments of the populations like abortion and same-sex marriage, certain critics argue that the Court is too aggressive with the cases it takes. In other situations, critics argue the Court is overly passive with the cases it chooses to avoid. A recent example of this debate ensued when the Court declined to hear several petitions regarding state gun control laws, thereby upholding certain restrictions.
There are certain indisputable facts about the petitions the Court examines. A certain number of petitions are filed on any given day and in a given week. The influx of petitions and the timing of filings may or may not affect the likelihood that the Court grants certain petitions. This article looks at whether and how the timing of certiorari (cert) petition filings affects the likelihood of a grant. It does so looking at data based on petitions the Justices granted from the 2015 and 2016 Terms.
Of course, there are many mediating factors aside from the time of filings that affect the likelihood of grants, even aside from those directly relating to case importance. Still, case grants, a large component of Supreme Court clerks (at least in terms of recommending which cases to grant) and Justices’ work, occur with disbursed frequency as do the number of petitions filed over a given period.
Take for instance number of daily petitions filed on days when the Court has granted petitions since the 2005 Term. At the minimum, on April 11, 2016 the Court docketed eleven petitions for cert and granted one of these with the case McRory v. Harris. On the other end of the spectrum, on June 23, 2015 the Court docketed eighty-two petitions for cert and granted three of these cases with Puerto Rico v. Sanchez Valle, Simmons v. Himmelreich, and Beylund v. Levi.
Similarly, the amount of time the Court pores over cert petitions varies drastically. The quickest grant was in the Midland Funding case this Term which was granted twenty-five days after the case was docketed. On the opposite end of the spectrum, Lightfoot v. Cendant Mortgage, also granted this Term, was pending for 483 days between the day the case was docketed and the date the Court granted cert in the case.
The following figure shows the distribution of time across which the Court has taken to grant cases over the 2015 and 2016 Terms. The horizontal axis represents the range of days between the day a case was docketed and the day cert was granted (e.g. the first column’s range is those cases pending between twenty-five and seventy-eight days) and the vertical axis represents the number of petitions that fit into a given column.
The figure above shows that most petitions were granted after pending between seventy-eight and 131 days with many also granted after pending between 131 and 184 days. The tail though extends to eleven instances of granted petitions pending 290 days or longer, and on the other end to eleven instances of petitions granted after pending between twenty-five and seventy-eight days.
Another way to look at the timing of grants is looking at when the Court grants the most petitions. These data are conveyed in the figure below for the 2015 Term.
While the Court tends to receive a large number of petitions over the summer months and in the early fall, there is an obvious spike in the case grants in June, the same month the as the previous Term ends. The downside to June filings is that the total number of petition rises as well. Take for instance, the example provided above of the eighty-two petitions filed on June 23, 2015 alone.
But what are the distributions for the number of daily and weekly cert petitions filed within the days and weeks of cert grants for the 2015 and 2016 Terms?
In terms of daily petitions, most of the petitions granted were on days where between nineteen and fifty-one petitions were filed with (more granularly) the most petitions granted on days when between twenty-seven and thirty-five petitions were filed. If we aggregate this up to a weekly basis we get the following distribution:
The bulk of the Court’s cert grants over the 2015 and 2016 Terms came in weeks where between 136 and 174 cert petitions were filed with a number of petitions also granted within an extended range of 117 to 193 weekly filings. There were also a surprising number of grants (9) within weeks where between 231 and 250 cert petitions were filed.
What do these numbers tell us? First a look at the likelihood of cert grants based on the length of time the petitions were pending between the date docketed and date cert was granted.
This figure shows that the probability of a grant in a given week decreases over time as most of the grants occur on the earlier end of the spectrum and within the first 250 days after a given petition was docketed (the probabilities were calculated by dividing the number of granted cert petitions that were docketed in a given week by the total number of cert petitions docketed in that week). The trend line shows the downward trend from just under a 2% likelihood of a grant to almost a 1% likelihood of a grant.
Similarly, we can look at the probability of a grant based on the number of weekly cert petitions filed.
This trend is almost flat as the trend line shows almost no change in the probability of a grant whether there are greater or fewer petitions filed in a week. Looking at the probability of a grant based on the daily number of cert petitions provides a bit of a different picture.
Here we see the trend line decrease as the probability of a grant decreases from just over 6% to well below 2% as the number of daily petitions rise. While this suggests a benefit of filing cert petitions on days with fewer filings, the results from the weekly probability counts show that the period of time over which this probability is investigated is quite consequential.
The results from this analysis show that the likelihood of cert grants may be at least somewhat affected by when petitions are filed. There are periods of time both according to the calendar and according to the number of petitions filed that may play a role in the likelihood of a cert grant. The length of time that the Court sits on cert petitions may also indicate a decreasing likelihood of a cert grant, at least according to data from the 2015 and 2016 Supreme Court Terms. While Supreme Court attorneys may not possess the whole range of this information ahead of time, it does indicate that attorneys may benefit from strategically deciding when to file petitions for writ of certiorari.
On Twitter: @AdamSFeldman
Research Assistance Provided By:@SamuelPMorse