Bonus 75: Where Have All the Cert. Grants Gone?

The Court has only two cases on its docket so far for the October 2024 Term. That's low even by the justices' recent standards—and further evidence of the need for serious docket reform discussions

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

This week’s bonus issue was prompted by a tweet by John Elwood, a partner at Arnold & Porter in D.C., and just about the savviest Court-watcher out there, especially when it comes to the flow of cert. petitions (requests that the Court exercise its discretion to hear appeals from lower courts, which comprise 95–99% of the cases the Court decides each term). One of the things John tracks is “relists,” which is when a cert. petition is scheduled for a specific Conference, but no action is taken in the next Order List, and the petition is then listed again (“relisted”) for the next Conference. With the exception of petitions granted at the justices’ “Long Conference” in September, just about every granted petition these days is relisted at least once—and so watching for relists is a remarkably accurate way to flag in advance those petitions that are most likely to either be granted or have separate writings accompanying a denial.

Anyway, as John noted on Monday, there are no “new” relists for the justices’ Conference tomorrow. That means two things: First, there are no cases that were discussed for the first time at the justices’ last Conference (on March 28) that are likely grants. Second, it’s unlikely that we will get any cert. grants in next Monday’s Order List. The Court could grant a case that has been relisted multiple times (here’s John’s latest list), but if history is any guide, each successive relist makes the odds of a grant (versus a separate writing accompanying a denial) longer.

This all matters because the Court is way behind in even starting to fill its docket for the October 2024 Term. As of today, there are exactly two cases that have been granted but not yet scheduled for oral argument—Williams v. Washington, which was granted on January 12; and Glossip v. Oklahoma, which was granted on January 22. That’s it. There’s only been one grant of certiorari since Glossip—and that was the expedited grant to resolve whether former President Trump is immune from the January 6 criminal prosecution (which is being argued two weeks from today). What makes this small number even more extraordinary is what is almost certainly a coincidence: Both Williams and Glossip are appeals from state courts. Thus, at least as of now, the Court has yet to grant a single cert. petition for next term in a case coming from a lower federal court.

If this seems like the Court is way behind, that’s because it is. Here’s a a chart that SCOTUSblog published last June showing the “Pace of Grants” over each of the past nine terms. (OT2019 was an outlier on the high side because of the holding over of 10 cases to OT2020 due to COVID.) Tomorrow’s Conference is to the October 2024 Term what “April #1” is to the previous nine on the X-axis. As you can (hopefully) see, the current term was already an outlier on the low side—with only six grants to this juncture. And two is … one-third of that total:

Below the fold, I consider possible explanations for this trend—and why, regardless of the reason, it’s one that ought to only further catalyze serious conversations about reforming the Court’s docket. For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.