Some SCOTUS Scheduling Speculation: Enough Is Enough

Supreme Court mindreading is a game that court watchers love to play—just not always on the record.

This became apparent recently when we asked several close court watchers to look into their crystal balls and opine about why the court—still down a pivotal ninth justice—decided to go ahead and schedule oral argument in three long-delayed cases.

Cases granted by mid-January are usually argued during that Supreme Court term. But not these three: Microsoft Corp. v. Baker, Trinity Lutheran Church of Columbia Inc. v. Pauley, and Murr v. Wisconsin. The court agreed to review these poor cases on Jan. 15, 2016.

Not 2017, 2016.

They take on lower-profile topics: a wonky procedural class issue in a suit over defective Xboxes; the intersection of play grounds, public safety grants and religious liberty in a suit against a church; and a regulatory taking in the last case against a state. All three languished at the court for months, being passed over by oral argument calendars month after month.

Until recently.

They have all now been scheduled for oral argument. Murr, No. 15-214, is Monday, March 20. Baker, No. 15-457, is Tuesday, March 21. And Trinity Lutheran slides over to Wednesday, April 19th.

The cases involve close questions, and perhaps the court waited more than a year to schedule them for argument because it wanted to avoid 4-4 splits.

But considering Judge Neil Gorsuch’s confirmation hearings in the Senate Judiciary Committee don’t start until March 20, that would be some fancy footwork.

So why did the court wait so long but then go ahead and calendar the cases for oral argument when the same 4-4 split is still likely?


Even on background not many attorneys wanted to speculate.

Two former SCOTUS clerks turned law professors, Dan Epps and Ian Samuel, shared their speculations on their First Mondays podcast.

They called the delay puzzling, but their guess is that Chief Justice John Roberts discussed the cases with the other justices at conference and decided enough is enough.

There wasn’t room for all three on the April calendar (on the off chance Gorsuch is confirmed by then), and March would look pretty empty without them, Epps and Samuel said.

One attorney who argues frequently at the Supreme Court gave us some insights, but only on background. He told Bloomberg BNA that the decision to hold off on the cases must have been Roberts’s decision.

When Justice Scalia passed away unexpectedly, he said, Roberts probably gave the instruction, “Don’t set these for argument as long as you can.”

“I doubt he polled the justices and had an impression or anything. I think he was thinking, these are just controversial topics,” this court watcher said. At that point, for all Roberts knew, Merrick Garland was going to get confirmed.

When it came time for the clerk to set the last two calendars for this term, Roberts probably gave him the instruction to set the cases for argument, our source said.

“I don’t think the chief would have been comfortable holding them over for another term because that’s basically holding over cases two terms,” he said. “It would look like he was kind of monkeying with things.”

It’s likely Roberts and the other sitting justices know that Gorsuch may not be confirmed in time to hear any cases this term. If any of these three cases turn out to be 4-4, the court could always have them reargued next term.

But just as the court has moved forward on Baker, Murr, and Trinity Lutheran, a new trio of cases seem to have assumed their position in the long-suffering, hold queue. 

NLRB v. Murphy Oil USA, Inc., No. 16-307; Ernst & Young, LLP v. Morris, No. 16-300; and Epic Systems Corp. v. Lewis, No. 16-285 all involve class action waivers in employee arbitration contracts.

These three cases, which the court agreed to review this most recent January and which were all consolidated for argument, are now apparently being held for hearing until next term.

In addition to being newer, these cases are even more controversial than Baker, Murr and Trinity Lutheran, the court watcher said. That, presumably, would be another reason for putting them off.

And if they, or other cases, are held over even longer? Court watchers have more chances to speculate wildly.

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