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Two Pieces To The Puzzle: Long Conference Petitions And Granted Cases For OT 2023

We are beginning to see a picture of what this coming term at the Court will look like.

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cartoon The Supreme Court architecture

The 2022 Supreme Court term concluded this past June. Since then, the justices have been on break. In the past, several justices go on vacation (some of the downsides to such travel have been documented as well) while others teach in exciting locations in and outside of the U.S.  This summer it appears that the justices have spent some time considering establishing ethical guidelines for the Court established by the justices themselves.  While some of the justices are off galivanting around the globe, the justices’ clerks, many of them embarking on their clerkships at the beginning of each summer, must wade through cert petitions for the end of summer’s long conference which moves us into to the next term.

Meanwhile, Supreme Court oral arguments begin on the first Monday in October, which this year falls on October 2nd. There are currently 23 cases available for argument through last term’s case grants. That means there are still likely more than half of the cases the Court will hear on oral arguments this coming term that have not yet been added to the Court’s merits docket.  Below is a breakdown of data from the long conference petitions and the cases already granted for argument in this coming term.

Long Conference

Supreme Court clerks have just under 1,000 petitions to review before the conference scheduled for September 26th.  The Court typically grants more petitions from long conferences than from any other conference across the term, which makes sense based on the time between conferences and how the justices and clerks have about three months of petitions to review between the end of June and the end of September each year. Last year, the Court granted nine petitions for argument after the long conference.

Many of these petitions are IFP (where costs are waived for indigent individuals) which are granted at much lower rates than paid petitions.  The petitions reviewed in the long conference were filed between February and August 2023 with the bulk of filings in June.

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While elite Supreme Court attorneys tend to get the highest number of case grants, they do not always file the largest number of petitions as shown below (the graph has all attorneys with at least three petitions slated for review at the long conference).  The following graph only covers the attorneys listed as main counsel of record.

Three attorneys tied for most petitions that will be reviewed at the long conference.  All three are federal public defenders from Texas — Kristin Kimmelman, Kristin Davidson, and Kevin J. Page.  The United States government has five petitions for review as well.  Paul Clement was the only attorney with a notable high petition grant rate with multiple petitions (two) under review in the long conference.

Next are the attorneys that are listed as opposition on the largest number of petitions currently under review. Petitions where the opposing party was the United States were removed.

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There are several heuristics to help get a sense of which petitions have the highest likelihood of case grants.  As noted above, since we know certain elite counsel have high grant rates, one way is to look for their petitions. Paul Clement, for instance, is listed on two petitions – in E.I. du Pont de Nemours & Co. v. Travis Abbott and in ABKCO Music v. William Sagan, while Lisa Blatt is counsel of record on the petition in Spirit of the East v. Yale Products, and Kannon Shanmugam filed a petition in Warner Chappell Music v. Sherman Nealy.

Another indicator, mainly alluding to case importance, is the filing of cert stage amicus briefs. Petitions with the support of at least two cert stage amicus briefs are shown in the next chart.

There is often a strong correlation between cases with elite attorneys on board and cert stage amicus briefs. This is the case above as both of Paul Clement’s petitions and Kannon Shanmugam’s petition have multiple associated cert stage amicus briefs.

Meanwhile the groups with the most cert stage amicus briefs filed in support of these petitions are in the following graph.

Frequent amicus filers the Cato Institute, U.S. Chamber of Commerce, and Washington Legal Foundation lead the way.

One other indicator of the justices’ interest in cases is when they are not decided in the first conference but are rather relisted for a future conference. Here are the relisted petitions that will be discussed at the long conference.

Granted Cases

Moving from petitions to granted cases, we see that no attorneys aside from those from the Solicitor General’s Office (not included in the following list) are so far counsel in multiple cases.  All attorneys shown below are instead counsel on one case granted for merits review this coming term.

Several of these attorneys are names well-known by those interested in the Supreme Court, including former Solicitors General Paul Clement and Noel Francisco, as well as Shay Dvoretzky and Adam Unikowsky among others.

The time it took the Court to grant these cases from the time the petitions (aside from the appeal in Alexander) were filed are in a range of just over 80 days to over 300 days.

The bulk of the petitions were granted between 100 and 140 days after the petition was filed.

While many amicus briefs for argued cases are not filed yet, there are already a substantial amount of amicus briefs associated with the cases set for argument this coming term.

Several of the cases with the most amicus briefs deal with important issues with large potential impact across many states and social groups. Two of the petitions that may have the greatest impact or at least garner a good deal of the public’s attention are Loper Bright (where the Court will decide whether it should overturn the Chevron standard for administrative agency deference) and Rahimi (where the Court will decide whether to restrict gun rights for individuals with domestic-violence restraining orders).  Of course, many of the other cases examine intriguing and novel issues which will be on the public’s radar.

We can also examine granted petitions by the number of times they were relisted for Supreme Court conferences, showing that several of the petitions were discussed at three or more conferences.

Finally, a look at the groups with the largest number of amicus briefs filed in granted cases.

This graph charts groups with at least two amicus briefs. Typically large volume filers are at the top of this list, including the ACLU, U.S. Chamber of Commerce, and the Cato Institute. Others like the Buckeye Institute and Manhattan Institute also have more than two amicus briefs in granted cases.

Conclusion

We are beginning to see a picture of what this coming term at the Court will look like.  There will be many familiar faces arguing cases.  As usual, there are many cases with hot-button issues although perhaps not leading to same degree of public interest as cases did in past terms (think of Dobbs and the affirmative action cases).

The picture of this coming term is so far from complete though. Only after the long conference and most likely several other future conferences will the entire slate of arguments for this coming term be complete.  We can use several tried-and-true prediction methods to gain an understanding of the cases the justices are most likely to grant. Though some of these cases with elite attorneys and multiple amicus briefs are likely to be granted, so will cases under less scrutiny that still manage to gain the attention of the justices and their clerks.

[Completed with the help of Jake Truscott, who gathered data for this post.]

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.com. Find him on Twitter: @AdamSFeldman.

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