About this Term: OT 2019

Even though not all briefs are filed in cases that will be argued before the Supreme Court this term, the interest level in the Court’s cases is at an apex.  There was a lot of hype leading into this term, as it is the first where all nine sitting justices have at least a term of Supreme Court experience under their belts since Justice Scalia’s sudden passing in the middle of the 2015 term.  Increased media coverage has also put a spotlight on the Court due to its integral role in resolving high profile issues such as the potential release of President Trump’s tax returns and the legality of the President’s immigration policy.

One measure of case importance predicated on different sectors of the public’s interest is the number of amicus briefs filed.  Amicus briefs filed after cases are granted can be differentiated from amicus briefs filed in support of cert petitions (which show groups’ interest in the Court deciding particular issues).  Cases this term have averaged high levels of support on both measures.  Specific trends are evident in the justices’ choice of cases for this term. These analytic measures provide insight into attorneys’ strategies for having cases heard by the Court and into the justices’ interests taking cases.

The chart below shows how the justices tended to grant cert petitions in certain clusters so far this term.

The most granted petitions, three, were from petitions filed on the weeks of October 21st 2018 and February 3rd 2019.  The Court also granted two petitions filed on several weeks bracketed by the aforementioned two weeks highlighting the importance of strategically timing petition filing.

The justices took an average of 168.72 days from the filing date to grant petitions for argument this term.

A total of 42 petitions, the majority of those granted for argument this term, were granted in a window of 70 days to 170 days from the time the petitions were filed.  Two cases, both involving the President took the justices less than 30 days to grant. These cases both relate to whether the President will be forced to publicly release his tax documents. On the opposite end of the spectrum, Opati v. Republic of Sudan, looking at whether the Foreign Sovereign Immunities Act applies retroactively, thereby permitting recovery of punitive damages under 28 U.S.C. § 1605A(c) against foreign states for terrorist activities occurring prior to the passage of the current version of the statute, was granted 483 days after the petition for cert was filed in the case.

Most cases took a longer time between cert grant in the case and the oral argument date than between the petition filing date and the day the justices granted the petition.  Still, a non-trivial number, 22 cases, had a longer period of time between the time the petition was granted and the date for oral argument. The following figure shows the distribution of the amount of time between petition grant and oral argument date for cases granted for argument this term.

The justices scheduled oral argument in ten cases between 120 and 140 days from cert grant and in ten cases between 180 and 200 days from cert grant. Looking at the relationship between the timing from petition filing to cert grant and the time from cert grant to argument date, the case with the smallest ratio of timing to grant to timing to argument was McKinney v. Arizona. This case was granted 109 days after the petition was filed and the justices scheduled oral argument 184 days after the cert grant for a ratio of .59 [petition to grant: grant to argument].  This can be compared to Google v. Oracle where the justices took 409 days to grant the petition after the cert petition was filed and scheduled oral arguments in the case 176 days after cert grant for a ratio of 2.32.

Cases this term have averaged a high number of cert petitions both at the cert stage and on the merits. Case averages and average by party type are shown below (Note that these averages are incomplete as groups continue to file amicus briefs in cases not yet argued).

Merits cases averaged just over 12 amicus briefs so far this term with petitioners averaging 6.66 briefs and respondents averaging 5.15 briefs across all cases.  R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission has the most merits amicus filings with 86 followed by June Medical Services LLC v. Gee with 70 and Bostock v. Clayton County, Georgia with 68 (for a deep dive into cases with a large number of amicus briefs in previous terms see this paper).  Since we don’t have all the amicus filings in all cases for this term including in cases with a large number of filings already such as Google v. Oracle, this ranking of cases with the most amicus filings may shift before the term is complete.

For cases already argued and with at least one amicus brief filed for each side, the case with the most amicus briefs filed on behalf of petitioners relative to those filed on behalf of respondents is the consolidated case of Maine Community Health Options v. U.S. with nine petitioners amicus briefs and one respondent amicus brief. The case with the most respondent amicus briefs relative to petitioner amicus briefs at also nine to one is U.S. v. Sineneng-Smith.

The breadth of amicus filings for this term includes many filed by repeat players who have been active in Supreme Court litigation for years.  A look at counsel of record for all briefs filed in cases this term based on the Supreme Court case dockets bears this out.

So far Brianne J. Gorod of the Constitutional Accountability Center, is counsel of record on the most briefs with 12.  She is followed by Paul Clement from Kirkland and Ellis who is counsel of record on a mix of parties’ briefs in cases he argued (or will argue) and amicus briefs, Lawrence Joseph who regularly files amicus briefs on behalf of various groups (for example), and Cato Institute’s Ilya Shapiro, all counsel of record in nine cases. Just behind these three with eight instances of counsel of record apiece are New York’s Solicitor General Barbara Underwood and Williams & Connolly’s Lisa Blatt.

The Court’s decisions in many cases this term are highly anticipated. The large presence of amicus filers as well as veteran attorneys representing parties is a testament to the importance of these cases.  Based on the justices’ voting patterns in highly anticipated decisions over the last few terms we can expect several of these cases to be decided by 5-4 votes along ideological lines.  By the end of the term we will know with more clarity whether these ideological divisions have created a clear divide between the justices, or whether this Court has the ability to rise above the ideological fray in a manner articulated by Chief Justice Roberts on multiple prior occasions.


On Twitter: @AdamSFeldman

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