May Oral Arguments at #SCOTUS are Very, Very Rare

November 20th, 2015

Ilya Shapiro and I have a Op-Ed coming out soon on the government’s petition in Texas v. United States. In the meantime, I wanted to highlight one point that has been hotly discussed: if the certiorari is not granted quickly enough to get on the Court’s normal argument calendar, will they schedule a special May, or even June sitting to hear the case?

The Washington Post reported today:

But experts on the court note that the justices could also make special accommodations for a case that carries such important questions about federalism and the balance of power between the political branches of government.

Cato Research Assistant Anthony Gruzdis (who helped on a previous issue) researched every instance in the past quarter-century where the Court scheduled a special May sitting. If we exclude cases that were re-argued, there were only three cases that were argued for the first time in May, and decided in June.

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

2. Felker v. Turpin (1996) involved the constitutionality of the newly-enacted Antiterrorism and Effective Death Penalty Act (AEDPA). The 11th Circuit denied a stay of execution for Felker on May 2. That day, Felker filed an application for a stay of execution with Circuit Justice Kennedy. On May 3, it was referred to the whole Court and granted. The briefs were to be filed two weeks later on May 17 , reply briefs on May 28. Oral arguments were set for June 3, 1996.
Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, noting that this case shouldn’t be so rushed:
In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court’s jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel’s request for handwritten notes from Vince Foster’s attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that “the High Court agreed to hear the case unusually quickly.”

I am not versed with the history of this case, but a footnote in the Petitioner’s reply brief states:

Independent Counsel contends that this Court should deny certiorari to speed the conclusion of his investigations. It appears, however, that his investigations will not end until long after this Court, if it determines to review this case, decides it. Petitioners would not object to expedited treatment for this case.

I think this uber-expedited argument may have something to do with the now-defunct Independent Counsel statute.

As Ilya and I will discuss shortly, the posture of Texas v. United States does not even come close to these precedents. Most significantly, the Solicitor General could have sought a stay in May from the 5th Circuit’s decision, but opted not to. If this was so dire, as I argued at the time, it could have been brought to the Court. They didn’t.