Supreme Court by the Numbers: Kicking Off the 2017 Term

By Kimberly Strawbridge Robinson, Bloomberg BNA

For legal nerds, the first Monday in October is like baseball’s opening day: Individuals at the very top of their game suit up for action; they observe time honored rituals; and the crowd awaits the signal beginning the highly anticipated event.

The anticipated event, of course, is the beginning of the U.S. Supreme Court’s new term, which begins Oct. 2 this year.

Here’s a dive into the most vital statistics for SCOTUS watchers who want an inside-baseball look at the court’s upcoming cases.

Significant Showdowns 

Recently, the justices have heard approximately 70 cases per term.

So far this term, the justices have filled fewer than half of those spots, agreeing to hear 32 cases. That’s a total of just
28 hours of argument after accounting for cases that have been consolidated for argument.

Those 28 hours are just shy of last year’s 29 hours of argument slated at the beginning of the 2016 term. Notably, many court watchers observed last year that the number of argument hours was historically low.

That recent dip in grants may be attributable to the 14 month vacancy on the court after Justice Antonin Scalia’s death in February 2016.Justice Neil M. Gorsuch took the bench April 10. During the vacancy, there were fewer justices available to get to the four required for certiorari grants, and the justices may have shied away from issues they thought would be decided in an even split.

Because the justices usually keep the reasons for their votes private when deciding whether to hear a case, it’s impossible to know precisely why the rate of early grants seems to have slowed.

Nevertheless, the court will continue to fill out its calendar, including after its Sept. 25 “long conference” at which it will consider the hundreds of petitions that piled up during the summer recess.

SCOTUS fans are in for an exciting opening, as the court has already scheduled two of its most noteworthy cases for the October sitting.

Those are the potentially earthshaking partisan redistricting case Gill v. Whitford, which will be argued Oct. 3, and the dispute over President Donald Trump’s controversial travel ban, Trump v. Int’l Refugee Assistance Project, to be argued Oct. 10.

The court has also released the calendar for its November sitting, which is full of consequential, if less well-known, issues. Among those are the meaning of the National Voter Registration Act in Husted v. A. Philip Randolph Inst., and the appropriate balance between Congress and the judiciary when Congress disapproves of a judicial decision in Patchak v. Zinke.

That leaves some blockbusters for the as-yet-unscheduled December sitting. Presumably that sitting will include Carpenter v. United States, regarding using warrantless searches of cell phone records to reveal a user’s movements, and Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, a showdown between religious freedom advocates and gay rights supporters.

Courting Cases

This court’s calendar is currently skewed toward civil cases — there are 25 civil cases and just 7 criminal ones. The court heard that many criminal cases in one sitting last term.

But there’s a little bit for everyone in this term’s civil cases, from weighty constitutional law questions involving the anti-commandeering principle in Christie v. Nat’l Collegiate Athletic Ass’n, to the viability of class action waivers in employment contracts in Epic Systems Corp. v. Lewis.

The court’s cases granted so far this term come from 12 different courts, including all but three of the federal circuit courts of appeals.

Of the 28 cases that originate from those circuit courts, 11 come from just two: the U.S. Courts of Appeals for the Seventh and Ninth circuits. This is a dubious distinction as the court is more likely to reverse cases it decides to hear. The Ninth Circuit frequently has among the worst records at the Supreme Court each term.

The other cases come from state courts—which put up an abysmal 3-11 record last term—and one federal district court.

Calling the Federal Government 

Approximately half of this term’s cases were brought to the court by attorneys who frequently argue before the court.

The U.S. Solicitor General’s Office filed the petitions in five granted cases, the most of any litigant.

The only other frequent Supreme Court litigator appearing as the counsel of record on more than one granted certiorari petition is Williams & Connolly’s Kannon Shanmugam. He is counsel of record in both Dig. Realty Tr. Inc. v. Somers and Ernst & Young LLP v. Morris.

Interestingly, the federal government has already participated in more than two-thirds of the Supreme Court’s granted cases. They are the petitioner in five cases, the respondent in six cases, and an amicus in 11.

The Supreme Court asked for the government’s amicus participation in five of those 11 cases, by calling for the views of the Solicitor General—a CVSG. Through the CVSG, the high court requests the Solicitor General’s advice on whether the justices should hear a particular case. The court agreed with the SG’s recommendation in two of those CVSGs; it disagreed in three.

Friends in High Places

The federal government, of course, isn’t the only amicus involved in the high court’s 2017 cases.

As of Sept. 11, there are only two cases in which no amicus has filed a brief. One—Murphy v. Smith—was just granted Aug. 25, in a rare summertime grant. Briefing in the other case—Marinello v. United States—is just getting started.

The partisan gerrymandering case has garnered the most amicus attention so far, with approximately four dozen briefs filed in the case. Briefing in the travel ban case is still ongoing but has already garnered nearly two dozen amicus briefs.

Amici were involved early in the process, too. In all but 11 cases, there was at least one amicus brief at the “petition stage” urging the justices to hear the case.

Re-Relisting?

The justices continued their practice of “relisting” cases before granting them. Relisting is simply the act of considering the case at another conference before granting the case, presumably to ensure there are no procedural hurdles that will trip up the court’s consideration of the case.

All but three cases were relisted at least once before being granted. The three cases granted without a relist were the travel ban case, which was granted on the last day of the court’s 2016 term; Murphy, granted over the summer; and one of the reargued cases. The latter was granted out of last term’s long conference, the most common exception to the court’s recent relisting practice.

Most cases were relisted only once before being granted. But a handful of cases lingered on the relist roll. In particular, Masterpiece Cakeshop was relisted 14 times.

Two Fourth Amendment cases, District of Columbia v. Wesby and Carpenter v. United States, were relisted eight and six times, respectively.

The cases was relisted so many times that many court watchers speculated that one of the justices was working on an opinion to accompany a denial of certiorari. That, of course, isn’t what happened.

Not Original 

Finally, all but one of the court’s 32 cases came to the court via its normal certiorari process—that is, through the court’s discretionary docket.

That’s the partisan gerrymandering case, which came through the court’s appellate docket, meaning that the justices were essentially required to hear the appeal.

Two cases left over from the court’s last term, Jennings v. Rodriguez and Sessions v. Dimaya will once again be heard by the court this term. Although those two cases came to the court via its discretionary docket, the then-shorthanded court was likely split 4-4 in these two “crimmigration” cases touching on both immigration and criminal law, and the court ordered reargument.

For the third term in a row, the court isn’t set to hear any original jurisdiction cases—those cases in which the Supreme Court acts like a trial court.