The Supreme Court will return October 1 to a backload of approximately 1,800 petitions that have piled up over the summer. Almost every one of them will be denied. Also known as the “Long Conference,” the Justices’ first meeting after summer recess is particularly brutal for cert. seekers who filed a petition in the preceding months.
While the chances of obtaining certiorari are slim, cases set for the long conference (which largely captures petitions filed June through August) are granted at roughly half the rate of those filed the rest of the year. Adam Liptak of the New York Times calculated the rates at 0.6 percent versus 1.1 percent, respectively.
Liptak posits that the Justices, who hear about 70 cases a year, are hesitant to fill up their docket early in fear of needing to turn down better cases filed later in the term.
So how do nine Justices review that many cases while, in theory, sipping mai tais on summer vacation? With the help of freshly-minted law clerks.
Though the Court keeps its internal operating procedures confidential, we know judicial law clerks can have a significant impact on a new term’s caseload. Eight of the Justices – with the exception of Samuel Alito – pool their clerks together to divide up petitions, appeals, and motions.
For each petition, the [J]ustices rely on one clerk’s memo, which summarizes elements of the case and provides a recommendation as to whether the Court should grant review. The law clerks who handle the massive number of summer cert. petitions are new to their posts, having received only a brief amount of training from the outgoing clerks. [F]ormer clerk, Jeffrey Fisher […] described the behavioral incentives clerks initially encounter: “New law clerks know that the way to play it safe is almost always to recommend a denial.”
Blake, William and Hacker, Hans and Hopwood, Shon R., Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions (August 13, 2015). Law and Society Review, Volume 49, Issue 4 (2015). Available at SSRN: https://ssrn.com/abstract=2644009
A 2015 paper by former-Cockle-employee-turned-law-professor Shon Hopwood and professors William Blake and Hans Hacker analyzed clerk memos from 1987 to 1994 in search of the impact new law clerks had on long conference petitions. The trio found that clerks considering similar petitions were 36 percent less likely to recommend a grant during their first months on the job. The authors argued that “litigants face an arbitrary and legally irrelevant disadvantage that is empirically attributable to the clerks’ initial hesitation to recommend grants.”
The Supreme Court looks poised to address major constitutional issues next term, running the political gambit from DACA immigration legislation to Second Amendment rights. With only half of its 2019 docket filled, it is safe to say that legal analysts will have their fair share of closely watched cases next month.