Today was another big day at the Supreme Court. Among the four merits opinions released, we got a very interesting summary reversal in Ryburn v. Huff and a landmark opinion in U.S. v. Jones, the GPS-tracking case. Unfortunately, I haven’t been able to plow through the latter yet, but I hope to get through it by the end of the day.

As you all have no doubt noticed, the Court has been releasing opinions at a blistering pace during the first half of October Term 2011. During the Roberts Court, the Court has not released more than 19 merits opinions by the end of the January sitting. This year, however, the Court released 21, including a blockbuster (U.S. v. Jones) and a mid-major (Perez v. Perry). The Court is likely to release another mid-major, Florence v. Board of Freeholders, during the February or March sittings.

With the steady flow of opinions, the Justices have all been busy putting out opinions on a number of hot-button issues. One Justice, however, has yet to author even a single majority, concurring, or dissenting opinion: Justice Kennedy. In some ways his silence is surprising–the Court has disposed of nearly a quarter of the cases it will likely decide during OT11 and Justice Kennedy is nowhere to be seen. On the other hand, he tends to write most frequently in high-profile, divided cases and therefore it takes more time for the Court to produce his opinions. Ultimately, however, compared to Justices Scalia and Ginsburg, who have authored eight and seven opinions, respectively, Justice Kennedy’s silence seems especially notable. Let’s take a look at how all of the Justices have fared during OT11.

Justice	Total Opinions
Scalia	8
Ginsburg	7
Thomas	4
Sotomayor	4
Breyer	3
Alito	3
Kagan	3
Roberts	2
Kennedy	0

Despite his silence up to this point in the term, I have little doubt that Justice Kennedy will leave his mark on the term by the end of June. With so many landmark decisions pending, it seems likely that Justice Kennedy with write more than a few noteworthy majority, concurring, and dissenting opinions. He has also traditionally written a low number of total opinions–last year only Chief Justice Roberts and Justice Kagan authored fewer total opinions. I suspect that we will see a similar trend during the current term. But when Justice Kennedy writes an opinion, he certainly makes it count for something.

I run into the exact same debate every year around mid-January: which cases will be heard during the current term and which will be pushed over to the next? For example, the Court granted three cases on Friday but should I categorize them as OT11 cases or OT12 cases?

Predicting which cases the Court will hear during the April sitting is more of an art than a science. This year we are aided by the early release of the March calendar, which occasionally comes out as late as the end of the January sitting (OT07, OT08). Recently, however, the Court has published the February and March calendars sometime in December (OT10, OT11).

We can also look at recent trends in the number of cases heard during the April sitting. The Court has heard fewer cases in the last few years than it had during years before. You can see the tally’s going back to OT03 below:

Term	April Args.
OT03	11
OT04	11
OT05	13
OT06	16
OT07	12
OT08	10
OT09	8
OT10	8

You can see the trend as a bar chart as well:
 

The recent trend suggests that the Court will once again aim to hear 8-10 cases in April. An April sitting with 8 cases would also leave the Court with 75 cases set for oral argument (counting the healthcare cases as one case). In recent years, the Court has heard around the same number of merits cases.

Term	Argued Cases
OT03	76
OT04	76
OT05	71
OT06	71
OT07	69
OT08	75
OT09	77
OT10	77

Another common signal used to predict the April cases is the presence of an expedited briefing schedule. Occasionally, the Court will order a case placed on an expedited schedule in order to accommodate arguments earlier than the normal schedule would allow. That happens both in extraordinary cases that need to be rush – like Perry v. Perez this year – and in cases that need to be squeezed into the term. January grants are often the subject of such expedited schedules, but none of the grants from the past two weeks have received such treatment.

One way for the Supreme Court to move cases along without upsetting the formal briefing schedule is to announce granted cases immediately following a conference and announce denied cases in the traditional Monday order list (OT09, OT10, OT11). The Court has used this procedure for each of the cases granted in January, a signal that it is at least considering whether or not to hear those cases in April. The Court did not follow the same procedure during OT10; it announced grants and denials in its normal order list and still managed to hear some of those cases during the April sitting.

The Cour may also consider its general workload for the term when scheduling cases for April. It has a number of important cases to decide before the end of June and many of those will require more judicial resources than the average case. If the Court were concerned about the length and difficulty of those cases, it may opt to hear fewer cases in the April sitting in order to devote more time to the difficult cases.

To date, the Court has ten cases that have been granted but not scheduled for oral arguments. Five of those were granted in December and will almost certainly make it onto the April argument calendar(Christopher v. SmithKline Beecham, Dorsey v. U.S., RadLAX v. Amalgamated, Arizona v. U.S., and Match-E-Be-Nash-She-Wish Band v. Patchak). Of the remaining five, the ones that were granted in the past two weeks, two were granted at the first January conference (Salazar v. Ramah Navajo Chapter and Florida v. Jardines) and three were granted last week (Kloeckner v. Solis, U.S. v. Bornes, and Cavazos v. Williams). The Court generally schedules cases for oral arguments in the order in which they were granted, but it does not follow the order of grants strictly.

In the past, the April calendar has been released in late-January or early-Februry. Here are the dates over the past few years:

Term	April Calendar Release
OT04	Feb. 24
OT05	Mar. 6
OT06	Feb. 5
OT07	Jan. 30
OT08	[uncertain]
OT09	Feb. 16
OT10	Feb. 7

Ultimately then, its hard to predict exactly which cases will be heard in April and when we’ll know, but I predict that we’ll find out mid-way through the February sitting that the Court will hear eight cases: all five that were granted in December, both of the January 6 grants, and one (possibly two) of January 13 grants.

Of course, the standard prediction disclaimers apply. I’m just as likely to be wrong as I am to be right, so plan accordingly.

The Supreme Court released four opinions today, and each was 8-1. You can find all of the opinions here.

CompuCredit v. Greenwood, a case centering around arbitration clauses, is especially interested. In an opinion written by Justice Scalia, the Supreme Court somewhat predictably upheld an arbitration agreement and read the Credit Repair Organizations Act’s nonwavier provision narrowly enough to allow the Federal Arbitration Act’s presumption of enforceability to prevail. At this point, Supreme Court opinions upholding arbitration clauses almost feel pro forma. Justice Ginsburg dissented.

Justice Ginsburg also provided the lone dissenting vote in Minneci v. Pollard. Over the past ten years, Justice Ginsburg has only provided the lone dissenting vote about once every other term (.5 times per year), so it was especially surprising to see her do it twice in one day. During the Roberts Court, there have been an average of 7.4 8-1 decisions per year, making today’s barrage of 8-1 opinions even more surprising.

The Supreme Court has released the Hearing List for the January sitting and you can find it here.

Several high-profile advocates are back in action during the January sitting. Gregory Garre leads all attorneys in private practice with his fourth argument of the term in United States v. Home Concrete & Supply and Solicitor General Donald Verrilli matches him with his fourth argument of the term in FCC v. Fox.

Paul Clement argues his third case of the term in Perry v. Perez this afternoon. Carter Philips and Assistant to the Solicitor General Nicole Saharsky also argue their third cases of the term in FCC v. Fox and Filarsky v. Delia, respectively.

Deputy Solicitor General Malcolm Stewart, who was notably absent from the podium during the first three months of the term, will argue in two cases during the January sitting: Sackett v. EPA and United States v. Home Concrete & Supply.

I’ve always thought it was funny that WestLaw handed out yellow flags like they were candy. I’m referring, of course, to “KeyCite Status Flags,” the shorthand notation given to each case to signal whether it has some negative history, is bad law, or has direct history.

• Red Flag: “In cases and administrative decisions, a red flag warns that the case or administrative decision is no longer good law for at least one of the points of law it contains.”
• Yellow Flag: “In cases and administrative decisions, a yellow flag warns that the case or administrative decision has some negative history but hasn’t been reversed or overruled.”
• Blue H: “In cases and administrative decisions, a blue H indicates that the case or administrative decision has some history.”
• Green H: “In cases and administrative decisions, a green C indicates that the case or administrative decision has citing references but no direct history or negative citing references.”

The common perception is that, for whatever reason, WestLaw gives yellow flags to a disproportionate number of cases. I thought I’d look at cases from OT10, most of which were decided in the last twelve months.

October Term 2010 Merits Cases

Yellow	56	70%
Blue H	24	30%

As it turns out, WestLaw actually does give out yellow flags to a large percentage of cases. Considering that these cases were decided by the highest court in the land within the last twelve months, it is pretty remarkable that so many of them already have “some negative history.” Go figure.

My next step is to look at cases from OT08 and OT09 to see how the trend shifts over time. I’d also like to look at the cases that cast doubt upon Supreme Court cases to see where they arise and to find the average length of time between a Supreme Court opinion and its first diminishing case.

Much has been made of the memo that William Rehnquist wrote as a clerk to Justice Robert Jackson advising him to uphold Plessy v. Ferguson in Brown v. Board of Education. Rehnquist always maintained that he was only writing what his boss wanted to read, but Rehnquist’s detractors saw that as a flimsy excuse.

I don’t have a strong view on that matter, but I thought it would be helpful to read the memo itself to divine an answer. If you want to read it yourself, you can find it here.

Rehnquist opens the most substantive portion of the memo with an argument that looks familiar to constitutional scholars today:

In these cases now before the Court, the Court is, as [John] Davis suggested, being asked to read its own sociological views into the Constitution. Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction.

It ends on an interesting note that also displays his matter-of-fact style mixed with a hint of flair that would become a hallmark of his thirty-three year tenure on the Court:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagyes, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer’s Social Statios, it just as surely did not enact Myrddahl’s American Dilemna.

After reading the memo, I get the impression that it truly reflected his views. The style is clearly personal and the informal tone makes it seem more likely that Rehnquist was free to write what he truly felt. That said, its hard to glean anything from a two-page memo. Consider this mystery unsolved.

The Supreme Court released the oral argument calendars for the February and March sittings yesterday, leaving five granted cases unscheduled. Those cases are Christopher v. SmithKline Beecham Corp., Dorsey v. U.S., RadLAX Gateway Hotel v. Amalgamated Bank, Arizona v. U.S., and Match-E-Be-Nash-She-Wish Bank v. Patchak. Each of those cases will almost certainly be heard during the April sitting, which runs April 16-25.

Over the past few years, the Court has heard 8-10 cases during the April sitting, so the Court is expected to grant 3-5 cases in January with an eye towards hearing them during this Term. The presence of so many high-profile cases late in the Term–Perry v. Perez, Florida v. DHHS, and Arizona v. US–could lead the Court to hear fewer cases in April than it would otherwise.

Next Wednesday, the Supreme Court will hear arguments in an interesting case about water law in Montana, PPL Montana v. Montana. The case will be a difficult one for a variety of reasons and the Court is going to need all the help it can get with the case.

Luckily, the Court will have five-star help from the parties. The three advocates who will argue in that case–Paul Clement, Gregory Garre, and Edwin Kneedler–have a combined 200 arguments before the Supreme Court. Kneedler has 113, Clement has 54, and Garre has 33.

Star-studded oral arguments have become more and more common in recent years as the Supreme Court bar eats up an increasingly high percentage of cases. On the same day the Court hears PPL Montana it will also hear from another set of high-profile advocates in Mayo Collaborative Services v. Prometheus Lab. The advocates in that case–Stephen Shapiro, Donald Verilli, and Richard Bress–all qualify as “expert” Supreme Court litigators under Richard Lazarus’s definition of the term and combine for 50 total arguments (Shapiro (29), Verilli (14), Bress (7)).

In all, the six advocates arguing on Wednesday, December 7 will have a total of 250 arguments between them. What a remarkable day at the Court!

Justice Kagan and Miguel Estrada have had a long relationship that has confounded and surprised many of their skeptics. At Kagan’s confirmation hearing, Estrada waxed poetic about her abilities and good humor while Kagan volunteered that Estrada was “qualified to sit as a Supreme Court Justice.” They first met at Harvard Law School when they were assigned to sit next to each other during each class of their first years.

Well, friendship with a Supreme Court justice has its perks. This week, the Supreme Court appointed Miguel Estrada to defend the decision below in Hill v. United States. Since appointed amici are chosen by the Circuit Justice for the circuit from which a case arose, Justice Kagan was likely tasked with finding an amici to appoint. This was her first appointment.

(H/T to Michelle Olson at Appellate Daily)

In the past, we’ve profiled notable advocates and judges that were in the news. This is the first in a series of posts about the advocates who will be arguing in the Healthcare Cases.

On November 18, the Supreme Court invited H. Bartow Farr to brief and argue an important point of law in the Healthcare Cases: that the minimum care provision of the Affordable Care Act is severable from the rest of the statute. Although Farr may be among the least well-known advocates arguing in the Healthcare cases, he has long held a sterling reputation within the Supreme Court Bar. I’ve created a brief profile of Farr to show he achieved such an impressive reputation at the Court and within the bar.

I. The Basics

Full name: Henry Bartow Farr III
Born: November 11, 1944 (Age 67)
Undergraduate: A.B. Princeton (1966)
Law School: J.D. Arizona State University (1973), summa cum laude; Editor-in-Chief of the Arizona State Law Journal
Clerkship: Justice William H. Rehnquist (1973-1974)
Government Experience: Assistant to the Solicitor General (1976-1978)
Current Firm: Farr & Taranto (1981-present)
Supreme Court Arguments: 30

II. Appellate Experience

Farr’s resume boasts at least two of the standard characteristics of a modern Supreme Court litigator: a Supreme Court clerkship and a stint in the Office of the Solicitor General. His law school pedigree diverges from the norm–he attended Arizona State University School of Law–but he graduated summa cum laude and served as editor-in-chief of the law review during his time there.

A few years after he completed his clerkship with then-Justice Rehnquist, Farr was hired as an Assistant to the Solicitor General and served for a standard two-year stint from 1976 to 1978. He argued five cases during his time there, including four cases revolving around Indian law.

In 1981, soon after leaving the Office of the Solicitor General, Farr joined with Joe Onek and Joel Klein to start Onek, Klein & Farr. The firm specialized in complex and appellate litigation and eventually developed an impressive reputation for Supreme Court litigation. Notably, this firm predated Rex Lee’s move to Sidley Austin to begin the first major private Supreme Court practice of the modern era. In 1991, the firm split and Farr joined Paul Smith and Richard Taranto to form Klein, Farr, Smith & Taranto. The firm eventually became Farr & Taranto when Smith left for Jenner & Block and Joel Klein left for the Department of Justice. Name partner Richard Taranto was recently nominated to Court of Appeals for the Federal Circuit, leaving the firm’s future in limbo.

III. Notable Cases

Farr’s most notable argument came in 2001 when he represented the Professional Golfers Association in PGA Tour v. Martin. Farr also represented National Cable Television, one of two respondents in City of New York v. FCC.

A complete list of his oral arguments at the Supreme Court follows:

• 1. Rosebud Sioux Tribe v. Kneip (1977) (as Assistant to the Solicitor General)
• 2. Puyallup Tribe, Inc. v. Dep’t of Game of State of Wash. (1977) (as Assistant to the Solicitor General)
• 3. Simpson v. U.S. (1978) (as Assistant to the Solicitor General)
• 4. Oliphant v. Suquamish Indian Tribe (1978) (as Assistant to the Solicitor General)
• 5. U.S. v. John (1978) (as Assistant to the Solicitor General)
• 6. Pennhurst St. School & Hosp. v. Halderman (1984)
• 7. Pennhurst St. School & Hosp. v. Halderman (1984) (reargued)
• 8. Zauderer v. Office of Disciplinary Councel of the Supreme Court of Ohio (1985)
• 9. Hooper v. Bernalillo County Assessor (1985)
• 10. City of New York v. FCC (1988)
• 11. Liljeberg v. Health Servs. Acquisition Corp. (1988)
• 12. Liljeberg v. Health Servs. Acquisition Corp. (1988) (reargued)
• 13. Brown-Ferris Indus. of Vermont v. Kelco Disposal (1989)
• 14. Missouri v. Jenkins (1990)
• 15. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990)
• 16. McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco of Fl. (1990) (reargued)
• 17. Ford Motor Credit Co. v. Dep’t of Revenue, State of Fl. (1991)
• 18. Masson v. New Yorker Magazine (1991)
• 19. Cipollone v. Liggett Group, (1992)
• 20. Cipollone v. Liggett Group, (1992) (reargued)
• 21. Turner Broad. System v. FCC (1994)
• 22. Allied-Bruce Terminix Co. v. Dobson (1995)
• 23. Turner Broad. System v. FCC (1997)
• 24. El Paso Natural Gas Co. v. Neztsosie (1999)
• 25. PGA Tour v. Martin (2001)
• 26. California Franchise Tax Bd. v. Hyatt (2003)
• 27. Olympic Airways v. Husain (2004)
• 28. Long Island Care at Home v. Coke (2007)
• 29. New Jersey v. Delaware (2008)
• 30. U.S. v. Eurodif S.A. (2009)

IV. Conclusion

Ultimately, the punchline is that Farr holds a stellar reputation for appellate advocacy. He is clearly an elite member of the Supreme Court bar, using either a mechanical definition or a more subjective one. His selection should come as no surprise and it will serve to push this well-respected advocate into the spotlight. To say that he deserves the appointment is an understatement.

Ordinarily, appointed amici are chosen by the Justice who oversees the circuit from which the case arrises–which would suggest that Farr was chosen by Justice Thomas–but the scope of this case means that other Justices may have weighed in. On the other hand, the assignment may have been given to Justice Thomas, who in turn decided to appoint two experienced advocates because they would simply be more likely to brief and argue the case at the highest level.