May Sittings at #SCOTUS

March 1st, 2017

Gloucester County urged the Court to delay arguing the case, to permit the Solicitor General to file a brief. The petitioner’s letter states:

Argument should be postponed until at least the April sitting.

“At least the April sitting,” suggests that the argument could be pushed back further, if needed.

In almost every term, the Court ceases hearing cases in April, but in three cases over the last quarter-century the Court has held a May argument. I researched this issue in the run-up to United States v. Texas.

Here are the three cases:

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.

Another option would be to hold a special August or September sitting, like the Court did with Citizens United. This issue will be driven entirely by what the Justices want to do. In any event, whether the case is argued in April, May, or August, Justice Gorsuch will be on the bench.