Michael Doyle has an essay on the second half of the Supreme Court term noting that most of the really fascinating cases are still ahead. I’ve noticed the backloading before. It seems that in most Terms, the more interesting and important cases are more often argued near the end of the Term. In contrast, the cases argued in the fall, especially the early fall, are more likely to be minor and technical cases (aka “the dogs”). At least that seems to be the trend in the last decade or so.
Assuming I’m right about the trend, why is that? I don’t know, but here’s some speculation. One possibility is that when the Justices know that the number of slots in the spring is tight, they get more selective and end up taking more important cases to be heard at the end of the term. It takes several months from the granting of a case to the oral argument, and the timing of the year may influence what cases the Court takes. Thus, perhaps the spring grants that are heard in the fall are granted at a time when cert standards are a little lower. The court is just beginning to fill up its docket for the fall, and there are no space limitations yet. Perhaps the Court is more willing to take minor cases in the spring that end up being heard in the fall.
Law clerk incentives tend to align with this, too. Law clerks play a role in advising the Justices on what cases to take. Roughly speaking, cert grants in the fall will be heard in the spring when the law clerks present for the cert recommendation are still clerking. In contrast, cert grants in the spring will be heard in the fall of the next Term when the clerks present for the cert recommendation are gone. To the extent law clerk recommendations influence what the Court does, spring cases may be more interesting than fall cases (on average) because law clerks may be more attuned to whether a case is interesting when it will be heard the year of their clerkship.
A third possibility is that the trend is more illusion than reality. The most interesting cases are often the most divided cases, and it takes the Court a long time to hand down those cases given the dissents, concurrences, and the like. As a result, the end of the Term always has more drama than the beginning of the Term. It may be that this association creates the impression that fall cases are more interesting than spring cases. Anyway, who knows. As I said, all speculation.
UPDATE: One article often noted on the topic of the timing of cert grants is Margaret Meriwether Cordray & Richard Cordray, The Calendar of the Justices: How the Supreme Court’s Timing Affects its Decisionmaking, 36 Ariz. St. L. J. 183-255 (2004). Thanks to Bob Markle for the reminder.
Mark Field says:
I have no idea why the pattern exists, but it’s older than a decade. I know people who commented on it in the early 70s.
December 29, 2009, 4:02 pmOff Kilter says:
As a non-lawyer, I had simply assumed that the Court had a flair for the dramatic…
December 29, 2009, 4:02 pmJohn Doe says:
Isn’t the answer that federal courts of appeals tend to run on summer-to-summer terms, and hard cases tend to lag until late in their terms, which tees them up for second half of the Supreme Court term?
December 29, 2009, 4:24 pmSoronel Haetir says:
I think it’s because by the time the end of June rolls around the earlier cases have been somewhat forgotten.
Certainly there have been plenty of cases this fall. Citizens United, Beard v. Kindler (which already produced an opinion), sex offender restrictions and more.
By the time say McDonald produces an opinion those cases will simply be part of SCOTUS history, somewhat like the famous map of the US as seen by a New Yourker, crammed against all the other SCOTUS opinions produced over the years.
December 29, 2009, 4:29 pmOrin Kerr says:
John,
I don’t think so. The courts of appeals go year round in their issuance of opinions, and given the frequency of things like extensions, en banc petitions, and the like, it’s hard to come up with an easy narrative of timing from court of appeals decisions to cert grants.
December 29, 2009, 4:30 pmAnderson says:
The most interesting cases are often the most divided cases, and it takes the Court a long time to hand down those cases given the dissents, concurrences, and the like.
That’s always been my assumption. The 9-0 reversals of the 9th Circuit on crim-pro issues come earlier in the term, I think.
December 29, 2009, 4:39 pmGuy says:
Yeah, why have we completely discounted the possibility that they were just saving the good ones for sweeps?
December 29, 2009, 4:56 pmdcperson says:
It seems like a strange result from the Court’s perspective at least. If more complicated cases are in the second half and yet they still have to issue the opinions by the end of the term, they’re stuck having to write the more complicated opinions more quickly than the easier ones.
December 29, 2009, 5:10 pmBRM says:
I would guess that big cases come up as cert petitions evenly throughout the year. Spring argument gets loaded with big cases because the Court issues the orders for merits briefing more quickly to be ready for earlier argument dates to fit them into the current term, while more ho-hum cases can get pushed off to the fall argument dates. Probably easier on the new law clerks to have more straightforward cases lined up for October oral argument. Probably easier on the Justices too, as they ease back from summer vacation.
December 29, 2009, 6:15 pmSoronel Haetir says:
Except there is no requirement that the docket have been cleared out by the time summer recess rolls around. It’s not all that common but cases do occasionally get held over without re-argument.
December 30, 2009, 9:00 amRoy Englert says:
I watch the Court pretty closely, and I don’t agree at all with the observation that “the cases argued in the fall, especially the early fall, are more likely to be minor and technical cases (aka ‘the dogs’).” Rather, I think Orin is right in his final paragraph before the “UPDATE” when he hypothesizes that “the trend is more illusion than reality.” There’s more excitement when numerous opinions are coming out than when all or most all that’s happening is that arguments are taking place. The resulting illusion is that the exciting cases are argued late in the Term. But I think it’s just an illusion.
Now, to some extent, these hypotheses are empirically testable. Orin hasn’t tested them, and neither have I, not even to the extent of reviewing the piled-up charts on the corner of my desk showing month-by-month arguments and dispositions for each recent Term. So this exchange is nothing more than the impressionistic views of two Court-watchers. But mine do differ from Orin’s.
By the way, another commenter asserted that some cases do get held over without re-argument. If the commenter meant only that cases granted but not yet argued, petitions (and appeals) not yet acted on, and original cases can remain on the docket from Term to Term without reargument, he’s right — literally hundreds of cases of those types get carried over every Term. If the commenter meant, however, that the Court sometimes hears argument and then recesses for the summer without having disposed of the case in some way (opinion, dismissal, reargument order, certification order, etc.), and then disposes of the argued case the next Term, then he is describing something I’m pretty sure I’ve never seen in 24 Terms of watching the docket very closely and systematically.
December 31, 2009, 5:44 pm