OT 2007When scheduling cases for oral arguments, the court tries to give precedence to the cases that were granted certiorari first. For example, if Case A was granted cert. in February and Case B was granted cert. in April, the court would generally try to hear Case A first. This allows council enough time to prepare for the case and to (hopefully) level the playing field for all cases. Since the court accepted nine cases to hear for October 2007, we would ordinarily expect that those would be cases 1-9 in order of cert. grant. You can check out a full list of the cases for OT 2007 and related information at our 2007 Term Case Index.

Well, this year there is a slight aberration that may or may not have significance. The cases, in order of cert. were (2), (3), (4), (5), (6), (8), (9), (19), (20) out of the 26 that have been granted cert. Cert. was granted in the first case on February 20, 2007 and the most recent grant was Boumediene on June 29. Of the cases scheduled for hearing in October, the first seven came from February, March, and April. The last two were granted on June 11, giving those attorneys a 5-15 week disadvantage over some of their colleagues. The fairness of the Court isn’t in question because both sides of the same case are granted the same amount of time, but it seems rather odd that the court would schedule two cases so suddenly.

There isn’t a pressing need for a decision like in cases like Bush v. Gore so this scheduling decision must have been intentional. Kimbrough, the 19th case accepted by the court, revolves around the 100:1 cocaine to crack ratio. Gall, the 20th case, involves the presumption of ‘reasonableness’ as it applies to a US sentencing guidelines. Gall looks a lot like Claiborne v. US, a case that was thrown out last year after the person in question died.

Another criminal case being argued in October is Watson v. US in which the court is asked to decided whether the “use” of a firearm means its mere presence or its ‘active employment.’ Oddly enough, the court decided to postpone arguments in Logan v. US, another criminal case and the first case that it agreed to hear for OT 2007. In Logan the court is asked to decide whether or not Logan’s previous battery convictions properly constitute a ‘conviction’ under the Armed Career Criminal Act.

The other aberration in the court’s October selection is Williams v. US, a criminal case and the 8th case accepted by the court. Williams deals with the distribution of “any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is illegal child pornography.”

I’ll be honest- I don’t know for sure why the court chose to schedule the cases in this order. It could have been a procedural necessity that I’m not familiar with or it could have been something far more sinister.

Updated @ 11:35- Just minutes posting a comment on a similar post over at SCOTUSblog, I received an email from Lyle Denniston (reporter for SCOTUSblog and Adjuct Professor at Georgetown Law School):

Thanks for your comment to scotusblog. In partial answer to your query, I believe that those cases were moved up because the Court had heard the issue of below-Guidelines sentences last Term (in Claiborne), and determined that it should get right back to that inquiry early in the Term. The cases that were not listed here are being spread out over the November and December calendars, because of the low number of available cases.
Lyle Denniston

That sounds like a solid reason for the courts decision. The court moved up two sentencing cases in order to finish up some issues from the last term and chose to postpone two miscellaneous criminal cases in the process.


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