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Supreme Court's Plenary Docket--Part One

By Jack M. Balkin

With the Supreme Court beginning its last sitting of the Term today, now is a good time to reflect on the Court?s plenary docket for the October 2008 Term. According to my records, we can expect the Supreme Court to issue 76 opinions of the Court this Term following full plenary consideration (oral argument and full briefing). That figure does not count the two per curiam summary reversals that were issued earlier this Term without the benefit of oral argument (Spears v. United States and Nelson v. United States), Al-Marri v. Spagone (which was dismissed upon motion of the United States), and the cases that have been dismissed as improvidently granted (Phillip Morris v. Williams and Bell v. Kelly). I also assume that the Court will not issue separate opinions in cases that have been consolidated. Using the methodology employed by the Harvard Law Review in its annual Supreme Court issue, we can expect a total of 78 opinions for the Court for this Term including the two summary reversals previously mentioned.

Of course, in addition to the assumptions stated above, the expectation of 78 opinions holds only if the Court does not dismiss any additional cases as improvidently granted, summarily reverse or affirm in additional cases through written opinion, or grant certiorari in a matter requiring extremely expeditious briefing (i.e., Bush v. Gore). Because I suspect that there may be other summary reversals or affirmances by the end of this Term, it is possible that the total number of opinions for the Court may reach 80. In any event, the total number of opinions of the Court for the October 2008 Term exceeds the modern low of 70 opinions from the October 2007 Term, and currently lies very close to the mean (77.2) and median (76) number of opinions of the Court for the past five Terms. In the next post, I will discuss whether the Court?s plenary docket from this Term differs in any significant respects from those of the past few Terms. I hope to post the second part of this series by the end of the week.

Note: Cross-posted at SCOTUSBlog

Full post as published by Balkinization on April 20, 2009 (boomark / email).

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