61. The October 2023 Term, One Quarter In...

Friday's cert. grants in the Trump disqualification and Idaho EMTALA cases round out the docket for what could end up as one of the most momentous terms in the Court's history.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

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On the Docket

Friday was quite a week. Within four minutes late on Friday afternoon, the Court issued two orders that were, easily, the two most newsworthy developments to come from the Court all week.

First, just before 5 ET, the Court finally acted on the long-pending emergency applications in the Idaho EMTALA case, about which I wrote in detail last week. In short, the Court did two things: First, it granted the two applications for stays (the fourth and fifth grants of emergency relief so far this term)—which put back into full effect Idaho’s abortion ban. (The district court had frozen a small part of the ban insofar as it prohibits abortions that are necessary to stabilize patients with an “emergency medical condition” under EMTALA.) Second, the Court treated the applications as petitions for certiorari “before judgment” (leapfrogging the court of appeals), granted them, and set them for argument during the April 2024 sitting. Of note, these were the 20th and 21st grants of certiorari before judgment since February 2019, after the Court had gone 15 years without granting any such truncated appeals.

As Thursday’s post predicted, I’m not at all surprised that the Court is taking up the EMTALA issue. I am surprised that the Court stayed the injunction in Idaho pending its resolution of that issue. And as I’m planning to cover in more detail in this Thursday’s issue, it’s really hard to understand how a stay could be justified in this case unless “irreparable harm” just doesn’t mean what it used to. But more on that later this week.

For now, let me just flag that, for those interested in this issue, my good friend, Dr. Jeremy Faust (author of “Inside Medicine”), and I are hosting a cross-over Zoom conversation about this case (and the law and medicine of EMTALA and state abortion bans more generally) today at 3:00 ET / 2:00 CT / 12:00 PT. Here’s a link to register:

https://partners.zoom.us/webinar/register/WN_7MfUm3JjSLWiWwbw4C8Mzw

(We’ll also post the video afterwards.)

Four minutes after the EMTALA order, the Court agreed to take up former President Trump’s (but not the Colorado Republican Party’s) petition for certiorari seeking review of the Colorado Supreme Court decision that had disqualified Trump from future office under Section 3 of the Fourteenth Amendment. Not only did the Court grant certiorari, but it set a very expedited briefing schedule—and scheduled oral argument for Thursday, February 8. That’s not the fastest we’ve seen the Court move, but it’s exceptionally fast—and a sign that the justices are interested in resolving the case quickly, perhaps in time for the Colorado primaries on March 5. I already have said a lot about this case, but I’m sure there will be more to say as we get closer to the argument.

Up to that point, perhaps the two most newsworthy things that happened at the Court last week were the release of the February argument calendar (which includes the NetChoice social media cases; the “Good Neighbor” ozone pollution emergency applications; and the case about the federal government’s limits on bump stocks); and the Court’s announcement that it is now possible for anyone, and not just lawyers participating in that case, to sign up for docket alerts for any case currently before the Court.

This latter development may be long overdue, but it is quite welcome—and enormously useful. As I’ve discussed before, it’s actually far more difficult than it ought to be to track developments at the Court outside of the scheduled releases of the regular Order List and opinions in argued cases. Now, folks can receive e-mails not just whenever the Court rules in a specific case, but also when new filings are made in that case. This is an unalloyed good for which the Court deserves kudos. Now if only it would start adding timestamps to its orders…

Later this morning, the Court returns to regular business—with an Order List expected at 9:30 ET (likely to mostly include denials of certiorari) and the beginning of the January argument session at 10:00 ET. There has been no public indication that any opinions are expected this week in cases argued last fall, so we’ll likely make it through the week still waiting for the second signed decision of the term.

Finally, the Court may act as early as this week on the federal government’s latest emergency application in a Fifth Circuit case—this one asking the justices to vacate an “injunction pending appeal” that the court of appeals issued barring federal officials from cutting or otherwise removing the razor wire that Texas has placed along the Texas/Mexico border except in a few limited circumstances. For those keeping score, this is now the 14th emergency application that the Biden administration has filed in the Supreme Court, and the 11th to come from the Fifth Circuit. (The Court has granted the federal government’s requested relief in eight of the first 10 cases, and ruled for the government on the merits in one of the other two.) Justice Alito ordered Texas to respond by 5:00 ET tomorrow, so a decision this week seems distinctly possible.

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The One First “Long Read”: Taking Stock of OT2023

Although we’re technically only one-fourth of the way through the October 2023 Term, mid-January is usually a pretty good time to take a step back and take stock of a Supreme Court term—if for no other reason than because that’s the informal cutoff for adding new cases to the docket for this term as opposed to next term. It’s still possible for the Court to add cases to this term’s lineup (and at least one more may still be coming, see below), but from this point forward, the justices would have to either expedite the briefing or hold an unscheduled argument after the last scheduled argument on April 24 in order to accommodate such a late-breaking dispute.

With that in mind, and with Friday’s addition of the Trump disqualification and EMTALA cases, here’s a chart of every case on the merits docket this term (note: this does not include the “Good Neighbor” ozone pollution cases, which are being argued as emergency applications, not merits cases), sorted by the date on which the Court granted cert.:

To explain the colors, yellow highlighting reflects my (entirely subjective) assessment of whether the case is especially legally or politically significant;¹ orange highlighting means the case is consolidated with the case above it for both briefing and argument (so that we expect only one ruling); light-blue highlighting means it’s an appeal from a state court; peach means it’s a direct appeal from a three-judge district court; and green means it’s one of the 11(!) appeals from the Fifth Circuit. Note also that those cases that have not yet been scheduled for argument (for which the last column is empty) will comprise the March and April calendars—probably in an order somewhat comparable to how they appear above.

With all of that said, a few observations:

First, assuming that the five pairs of consolidated cases all produce a single ruling, that means we’re looking at no more than 53 decisions in argued cases (51 or 52 if the Court ends up issuing a single opinion in either or both of the two NetChoice and two Chevron cases, which were not consolidated for briefing and argument, but could well be consolidated for decision). That (53) would tie for the fewest decisions by the Court since 1862. And even if that number ticks up a few, we’re almost certainly looking at the fifth term in a row in which the Court hands down fewer than 60 merits decisions. Before OT2019, the Court hadn’t issued fewer than 60 rulings in a single term since 1864. Thus, while the Court is deciding so many major cases (more on that below), the docket as a whole is smaller than it has been in a very long time. I’ve been beating this drum for a while, but at some point it is worth a serious conversation about the many different reasons, some of which have nothing to do with politics or ideological commitments, why this is not a salutary development.

Second, as the chart reveals, there’s a lot of yellow highlighting both in general and toward the bottom (that is, among the cases granted relatively later in the term). If nothing else, the weight of late-granted significant cases adds further fuel to one of my criticisms of “curtain-raiser” previews of the Court’s term written before the docket is fully fleshed out. Indeed, back in September, when most of the media focus was on the major administrative law cases the Court heard in the fall, I wrote that “it’s entirely possible that the real theme of this Term is going to be President Trump—whether because of the criminal cases against him; the efforts to adjudicate his disqualification under Section 3 of the Fourteenth Amendment; or both. But none of those cases are anywhere close to the Supreme Court yet.” Well, they’re here (or close) now, and things do indeed look quite a bit different…

Third, and related, it’s worth stressing how unusual it is for this many of the Court’s cases, in absolute terms and, especially, in percentage terms, to be “major” cases. Not only do major cases tend to consume a relatively larger amount of the justices’ time (and tend to lead to more separate—and longer—opinions), but they also have a tendency to reinforce the most troubling features of the current Court, including its sharp ideological divisions. If a greater part of the justices’ work, in both absolute and percentage terms, involved more technical, less momentous disputes, those disputes might in turn provide better evidence of the justices acting as judges—with less predictable lineups and outcomes, and more evidence to rebuff charges that the justices are just “politicians in robes.” In contrast, when (at least to some extent by the justices’ choice) so much of the Court’s work involves questions at the forefront of contemporary cultural and political wars, it is more likely that more of the decisions will simply reinforce everyone’s priors about the justices and the institution. Given recent decline in public confidence in the Court, that’s inertia that the Court ought not to lean into.

All of this leads me to the big question, which a reporter asked me last week and I wasn’t sure how to answer: Are we looking at the biggest term ever? As with any effort to turn everything into superlatives, there’s an unavoidable recency bias problem in trying to answer that question. I suspect there are very few folks out there (perhaps besides lawyers who clerked during that specific term) who could, off the top of their heads, come up with the “five biggest decisions” of, say OT1965 (the term of Miranda, South Carolina v. Katzenbach, Katzenbach v. Morgan, and others), or OT1972 (Frontiero, Keyes, Rodriguez, Roe).

There’s also the inherent problem of defining what makes any given term “bigger” than others. Obviously, a single massively important (and divisive) decision can loom rather large over a term—take Bush v. Gore and the 2000 election, or Brown and the Civil Rights Movement, or Dred Scott and … the Civil War. There’s also the question of whether the relevant data set is just the Court’s rulings, or whether other Court-involved behavior counts (e.g., the five justices who served on the Electoral Commission of 1877; the Court’s role in the adoption of the Judiciary Act of 1925 (and the transfer of power it precipitated); etc. And even limiting our gaze to more recent terms, it’s hard to look back just two years at a term that produced Bruen, Dobbs, West Virginia v. EPA, Kennedy, and Carson and think that any closely proximate term could be “bigger.”

Per the above, I still think that January is too early to answer that question. But, it seems increasingly possible that, by the time this term is over (officially, Sunday, October 6), the Court will have handed down a larger number of massively significant legal rulings in contexts that are culturally and/or politically significant than any term any of us have experienced, and perhaps than any term in the Court’s history. Beyond Trump (where, in addition to the disqualification issue, the Court could well end up resolving whether former presidents are immune from criminal prosecution, with the D.C. Circuit set to hear argument tomorrow), there are now two different significant abortion cases; 4-5 major structural administrative law cases (i.e., cases about the constitutional structure and authority of agencies, and not just their statutory powers); a half-dozen major First Amendment cases (including five about how the First Amendment applies to social media and government regulation thereof); two major gun cases (Rahimi and bump stocks); Fischer (which could be a referendum on the most common charge in the January 6 criminal prosecutions); a major racial gerrymandering case from South Carolina; three significant property rights disputes; and the aforementioned “Good Neighbor” ozone pollution rules.

That’s somewhere around 20 big Supreme Court decisions—all of which will come down in the middle of an especially divisive election cycle in which the Court is already far more than just an observer. We also have an entire summer’s worth of potential election-related litigation to be resolved through emergency applications (there were a wave of such cases in 2020). And all during the same term in which the Court adopted its first-ever “Code of Conduct,” both reacting to and reflecting how the justices’ personal behavior has become a flashpoint to an extent not seen since at least the late 1960s.

As is always the case, some of these disputes may fizzle, and the Court may avoid major rulings in at least some of the cases in which they are at least a reasonably possible outcome. So the prudent thing to do is to reserve judgment on any effort to compare this term to previous ones at least until it’s over. But even before last Friday, and especially after it, as the October 2023 Term passes the quarter point, it’s hard not to think that, for better or worse, it’s going to be one for the history books.

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SCOTUS Trivia: The Busiest Term Ever

Unlike the inherently subjective question of which Supreme Court term was the “biggest,” it’s a somewhat easier task to identify the term in which the Court handed down the most decisions. According to an 1888 House of Representatives report, which in turn quoted a speech by Justice Harlan, the Supreme Court during its 1886 Term disposed of 451 cases, all of which it had to hear and resolve. Starting in 1891, with the gradual rise of certiorari, the Court would never again approach that total. And if we include summary denials of certiorari, the record may well belong to the 2006 Term—where, according to the Court’s Journal, it “disposed of” 8895 cases between July 1, 2006 and June 29, 2007, albeit with only 67 signed opinions in argued cases.²

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Happy Monday, everyone! I hope that you have a great week.

Oh—and GO BLUE!

1. In some respect, almost every case the Supreme Court hears is significant. Much like the red coloring on SCOTUSblog, my goal here is merely to try to differentiate between cases of significance to a particular practice area or group of parties, and cases that potentially have substantial national legal and/or political ramifications. Your mileage, of course, may vary.

2. As I’ve noted before, the Supreme Court, for reasons of convenience but not clarity, keeps year-over-year data starting from when the Court resets the docket numbers (when the justices rise for their summer recess), and not from the First Monday in October until the Sunday preceding the next one.