Legal Commentary

Why is the Second Half of the Supreme Court Term More Interesting Than the First Half?

By Orin Kerr

Michael Doyle has an essay on the second half of the Supreme Court term noting that most of the really fascinating cases are still ahead. I?ve noticed the backloading before. It seems that in most Terms, the more interesting and important cases are more often argued near the end of the Term. In contrast, the cases argued in the fall, especially the early fall, are more likely to be minor and technical cases (aka ?the dogs?). At least that seems to be the trend in the last decade or so.

Assuming I?m right about the trend, why is that? I don?t know, but here?s some speculation. One possibility is that when the Justices know that the number of slots in the spring is tight, they get more selective and end up taking more important cases to be heard at the end of the term. It takes several months from the granting of a case to the oral argument, and the timing of the year may influence what cases the Court takes. Thus, perhaps the spring grants that are heard in the fall are granted at a time when cert standards are a little lower. The court is just beginning to fill up its docket for the fall, and there are no space limitations yet. Perhaps the Court is more willing to take minor cases in the spring that end up being heard in the fall.

Law clerk incentives tend to align with this, too. Law clerks play a role in advising the Justices on what cases to take. Roughly speaking, cert grants in the fall will be heard in the spring when the law clerks present for the cert recommendation are still clerking. In contrast, cert grants in the spring will be heard in the fall of the next Term when the clerks present for the cert recommendation are gone. To the extent law clerk recommendations influence what the Court does, spring cases may be more interesting than fall cases (on average) because law clerks may be more attuned to whether a case is interesting when it will be heard the year of their clerkship.

A third possibility is that the trend is more illusion than reality. The most interesting cases are often the most divided cases, and it takes the Court a long time to hand down those cases given the dissents, concurrences, and the like. As a result, the end of the Term always has more drama than the beginning of the Term. It may be that this association creates the impression that fall cases are more interesting than spring cases. Anyway, who knows. As I said, all speculation.

UPDATE: One article often noted on the topic of the timing of cert grants is Margaret Meriwether Cordray & Richard Cordray, The Calendar of the Justices: How the Supreme Court?s Timing Affects its Decisionmaking, 36 Ariz. St. L. J. 183?255 (2004). Thanks to Bob Markle for the reminder.

Full post as published by The Volokh Conspiracy on December 29, 2009 (boomark / email).