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:
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.
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|
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.