The October 2017 term of the Supreme Court is over, and the October 2018 term does not begin until the first Monday of October (which happens to be October 1). A loyal follower of this blog asked what happens between now and then at the Supreme Court? How do they handle emergencies and their regular cases? What, in fact, does the Supreme Court do during their three-month summer break?
Well, unless there is an emergency (think the Pentagon Papers or the Nixon tapes cases) they do not hear oral arguments over the summer. The only cases of any note they decide are death penalty cases, and these are requests for a stay of execution. As I pointed out in an earlier post, requests for stays of execution go in the first instance to the circuit justice (the member of the Supreme Court that has administrative responsibility for the circuit the stay request comes from) and then they are referred to the entire Court. The Court can decide these cases by a conference call. (The Court is not the most tech-savvy place–they only allowed electronic filing during the last term–so I don’t think they Skype). Other administrative duties that apply just to the circuit are carried out by the individual justice over the summer, just as they are during the term. Other than these two areas, the Justices do get a break, which gives them time to take a vacation, give speeches, write, and just relax for a bit. If you want to keep up on where the Justices are traveling to for official business (speeches and public appearances) check out scotusmap.com (or @SCOTUSMap on Twitter), where you can follow the whole Court or focus on your favorite Justice, complete with an interactive map.
What about cert petitions? The Clerk’s office does not get the summer off, and cert petitions, as well as requests for reargument and other matters that show up on the Court’s normal order list (you can see one here to get an idea), are filed continuously during the three months between terms. Barring emergencies, all of this paperwork will be dealt with at what is called the “long conference”, held the week before the term begins (normally on Monday). As pointed out in this article by Adam Liptak (the New York Times’ Supreme Court reporter) the “long conference will deal with nearly 2,000 cert petitions (and other matters) that have piled up during the summer. And almost everyone will be denied. As a former Solicitor General quipped, “the summer list is where petitions go to die”. To give you an idea, the first order list of the October 2017 term was 75 pages long. and not a single grant.
And no, the Justices don’t see this mountain of paper for the first time when they come to the “long conference”. They (and their clerks) have been wading through this all summer. They still need to discuss and vote on these cases, but they come to the “long conference” prepared.
So the three months between terms is really only a minor break; the Supreme Court never sleeps, only naps.
So what can we expect during the October 2018 term? We already have the calendar for the entire term (when the argument and conference days are) and the first argument calendar which takes us through the first two weeks of the term. The first case to be argued is one that I featured in a previous post, Weyerhauser v. United States Fish and Wildlife Service, or the case of the dusky gopher frog and the fight about the delineation of their habitat. The issues are whether the Endangered Species Act allows an agency like FWS to designate private land as a critical habitat when it is neither a habitat nor critical; and whether courts can review the agency’s decision not to exclude an area from the designation of a critical habitat because of the economic effects of designation.
.
(Say hello to the dusky gopher frog!)
On a far more serious note, the second day of argument features a case which I posted about here and here, Madison v. Alabama, which takes up the issues of whether, consistent with the Eighth Amendment, and the applicable Supreme Court decisions, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution. To be sure, a major death penalty case.
There are 11 cases set for argument from October 1 to October 10; 27 others not yet set for argument. You can see the entire list on SCOTUSblog under “Merits Cases”—> “October Term 2018”, which lists the cases, their docket numbers, and when the case will be argued. That makes 38, slightly less than half a usual term’s argued cases. Give it a look; maybe you’ll find a case or two you want to follow. And remember, the docket number allows you to search the docket of a case, letting you see all the documents, including briefs, which now that they must be filed electronically, you can click on and read. And if you notice a “CVSG” after the issue statement, this means the Court has “Called for the View of the Solicitor General”: they want to know what the Solicitor General, whose office argues all the government”s cases before the Supreme Court, has to say about the case.
(A personal favorite (being a stare decisis/judicial precedent/federal courts aficionado) is Franchise Tax Board of California v. Hyatt, No. 17-129. The issue: whether Nevada v. Hall, 440 U.S. 410 (1979) a decision which permits a sovereign state to be sued in another state’s courts without its consent, should be overruled. Yes, I know: gripping. But 50 states are definitely paying attention to this one).
Next up: The Travel/Muslim Ban case and Judge Kavanaugh’s nomination.