The Court’s new policy of automatically re-listing cert petitions before granting them raises an interesting question: will the Court’s first conference of the new term (the “long conference”) generate any cert grants? This question has some practical importance and also draws attention to the Court’s frequently opaque operating procedures.
Here’s the background. In the past, the Court has generally voted on all petitions for certiorari at its first opportunity to do so—that is, at the first internal conference in which those petitions were considered. This conference date was publicly noted on the docket for each cert petition, and parties sometimes made strategic decisions based on that information. Only in unusual situations did the Court “relist” grant-worthy cases by postponing a vote on them until the next scheduled conference. A relist might occur, for example, if a Justice found that a complex case demanded extra consideration.
Last year, however, something changed. Early in the term, the Court had to deal with what seemed like an unusual number of vehicle problems. In some instances, the Court had to “DIG,” or dismiss cases as improvidently granted. Then, around the middle of the term, the Court started systematically “relisting” petitions before granting them. This pattern was first observed by Hashim Mooppan and reported on SCOTUSblog by John Elwood. (I blogged that the policy shift could have to do with the rise of the Supreme Court bar, and Roy Englert and Tom Goldstein responded.) Notably, the Court never issued a public statement announcing or explaining its new policy. Presumably, the Court changed its procedures in order to give itself more time to scrutinize petitions before granting them.
That brings us to today. We’re now approaching the “long conference” (slated for September 29), when the Court returns from its summer-long recess and considers all the cert petitions that have come in since the end of June. Traditionally, the long conference has generated a significant number of grants as the Court has tried to fill its calendar for the new term.
Will this year be the same? Perhaps, consistent with last term’s apparent policy change, the long conference will not actually grant any of the accumulated summer petitions, but will instead relist them for later review. With novice clerks writing pool memos and a daunting number of cases to consider, the auto-relist policy might look more helpful than ever. Alternatively, the Court may think that the reasons for its policy change don’t apply to the long conference. If the Court was worried about making snap decisions, for instance, then maybe it’s enough that the Court has so much time for review of petitions in advance of the long conference. Of course, it’s also possible that the entire policy change was just a tentative experiment. Having tried it out for a while, the Court might go back to business as usual this term.
Whether the Court adheres to its auto-relist policy has practical consequences for litigants. Advocates often like to plan out the timelines of their cases, particularly at certain times of year, such as the fall. Right now, prospective petitioners for cert are trying to gauge how early they have to file in order to maximize the odds of getting their cases heard this term. File too late, for instance, and you might have your case pushed off into the next term, which may well be to your client’s disadvantage. If the auto-relist policy continues, then advocates will have to factor it into every strategic decision of this kind.
And that leads to the broader point: the Court could be more transparent when it makes policy decisions such as the auto-relist policy. Instead of implementing the change and leaving it to specialists to notice after the fact, the Court could simply post a brief announcement, or even revise its rules. That modest reform would prevent parties from being surprised by undisclosed rules, equalize the playing field between Supreme Court specialists and other lawyers, and reduce uncertainty as to what the Court will do next.