Author: Stephen Wermiel

It has been twenty-five years since then-Chief Justice William Rehnquist observed that there was no real bar of specialists who regularly appeared before the Supreme Court. How things have changed! Today, there is most definitely a group of Supreme Court “regulars,” lawyers who make a specialty of taking cases to the Supreme Court. This group participates in a significant number of argued cases each Term, either handling the briefs and arguments for a party to the case or filing amicus – that is, friend-of-the-court – briefs. And many of the highest-profile cases of the Term feature the involvement of Supreme Court specialists.

It has been just a little over two weeks since the Justices last heard oral arguments, but don’t mistake their absence for inactivity. Among the many things that occupy their attention when they are not hearing oral arguments are emergency applications – particularly applications to stay the ruling of a lower court or to stay an imminent execution. Just in the past eleven days, the Court has acted on eight stay applications:  five in capital cases, two in election disputes, and one in a case involving a struggle over subpoenas from the British government to Boston College researchers. Sometimes stay applications simply present technical procedural requests, but at other times – for example, when an execution is imminent or election battles are looming – they can create real drama and suspense.

Tomorrow morning the Court is scheduled to hear oral argument in two cases.  But after the first one ends, Justice Elena Kagan will slip quietly out of the courtroom, leaving her eight colleagues behind to hear arguments in Fisher v. University of Texas at Austin, the important test of the use of race in higher-education admissions. Justice Kagan will not take part because she is recused – that is, she is not participating because of an actual or potential conflict of interest.   For Justice Kagan, the conflict stems from the fact that she served as the Solicitor General when the Department of Justice filed a friend-of-the-court, or amicus curiae, brief in the Fisher case when it was pending in the U.S. Court of Appeals for the Fifth Circuit; in that role, she would have been involved not only in the decision to file an amicus brief, but also in decisions regarding the content of the brief itself. The question of when Justices recuse and what standards apply is an important one for students who follow the functioning of the Court as an institution, as well as for students who study judicial ethics. More broadly, the outcome of the affirmative action case will have an impact on public colleges and universities throughout the nation, and her absence could conceivably affect the decision.

The Supreme Court is shrinking. Not the building or the number of Justices. No, the Court’s docket is declining, both the number of petitions filed and the number of cases decided. This is not a new phenomenon, but a pattern that may have started twenty-five years ago is continuing. The pace of granting cases for the new Term that officially launches on October 1 has been very slow so far, although – as it often does as it prepares to begin a new Term – the Court did grant six additional new cases yesterday morning. Despite the prolonged trend, no one seems to know exactly why the docket is shrinking, although theories abound to explain the decline. Here are some parameters to consider: in the Court’s most recent Term, which ran from October 2011 through June 2012, the Court issued sixty-four full, signed opinions after briefing and oral argument, the smallest number in at least a half-century and maybe longer. The total number of petitions filed in the Court has also declined, dropping by 145 last Term from the previous year and 447 from two Terms ago.

Few issues have more deeply divided the Supreme Court in recent years than the meaning of the “Confrontation Clause” of the Sixth Amendment. At first glance, the Confrontation Clause does not seem very complicated. Standing in the middle of the Sixth Amendment along with the right to counsel, a speedy trial, and an impartial jury, the provision declares, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” But the eight-word clause has been caught up over the years in complex questions about witness unavailability, opportunity for meaningful cross-examination, hearsay evidence rules and exceptions, and – more recently – testimony related to scientific reports and laboratory evidence. In one form or another, the controversy centers on evidence from witnesses who do not testify at a criminal trial. The evidence may be in the form of prior statements to police or prosecutors, testimony in other settings, lab reports, or other scientific evidence.

Every June, the nine Justices finish their Term, often with a flurry of highly visible decisions, such as the five-to-four ruling upholding the Affordable Care Act on June 28. Then over the next days and weeks, the Justices head off for summer travel – teaching, vacationing, writing, lecturing, and attending bar association meetings and conferences of the federal appeals courts. But ask Supreme Court law clerks how they spent their summer vacation, and the answer is easy: reading petitions for certiorari by the hundreds. Although the Court’s visibility goes on hiatus for nearly three months, there is still much work to be done not only working on the merits cases for next Term but also sifting through the petitions to find the small number that will make it to the Court’s calendar of cases to be argued and decided on the merits. That sifting is done initially by law clerks, and the process continues throughout the summer.

Why does a Supreme Court case with the potential to be a major ruling result in a narrow, much less significant decision? Consider the case of Federal Communications Commission v. Fox Television Stations, which was widely expected to be a major test of First Amendment limits on federal regulation of television and radio broadcast content.  But instead, the Court’s ruling turned out to be a narrow one that resolved little and left major questions for another day.

Every June, you can count on two things regarding the Court. First, the Justices will issue some major rulings resolving cases that were argued earlier in the Term. Second, the rumor mill about how and when those decisions will be made, especially in and around Washington, D.C., will take on a life of its own, with no stopping it. The current focus, of course, is the impending decision on the constitutionality of the Affordable Care Act, the sweeping health care reform law proposed by President Obama and passed by Congress. In March, the Justices devoted six hours of oral argument to the issues raised by challenges to the health care law.

Beginning in January each year, the Supreme Court officially becomes schizophrenic. But don’t worry, there is no treatment required. At some point in mid- to late-January, the Court stops setting cases for argument in the remaining months of the current Term and shifts to filling up the slots for the next Term. As a result, the Justices are working on their active docket and planning for what lies ahead. The main reason for this practice is simply one of timing. The Court hears oral arguments in seven sessions, each spanning two weeks, from October through April. The Court’s rules spell out a 105-day schedule for parties to file briefs:  forty-five days after the case is granted for the petitioner, thirty days after that for the respondent, and thirty more days for a reply brief by the petitioner. By January, it becomes difficult as a matter of simple mathematics to grant a petition for certiorari and still be able to schedule that case for argument in April on a normal briefing schedule.

The Supreme Court is accustomed to having the last word on matters of constitutional interpretation. But in the application of First Amendment free speech principles to restrictions on corporate campaign spending, the Montana Supreme Court invoked one of the lessons from first-year law school – that facts matter – to uphold state restrictions on independent corporate spending in elections.  Now, that court’s December 2011 decision appears to have set the Montana court on a collision course with the U.S. Supreme Court, which will soon decide whether (and how) it will review the ruling. In January 2010, the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations and labor unions have a First Amendment right to engage in independent spending to influence elections. By a vote of five to four, the Justices overturned their own precedents and struck down a portion of federal election law that prohibited corporations and labor unions from spending their own funds directly to urge support for political candidates.