The United States Law Week

‘Tenth Justice’ Shorts Supreme Court, Case Deadline Looms (2)

Jan. 4, 2019, 10:00 AMUpdated: Jan. 4, 2019, 9:35 PM

The U.S. Supreme Court’s “Tenth Justice” isn’t making it easy for the real justices to fill out their docket, contributing to what may turn out to be another low number of cases for a full term.

The justices considered on Friday whether to take up eight cases at their private conference that it had earlier asked U.S. Solicitor General Noel Francisco to weigh in on. But Francisco, the Trump administration’s point man at the court, has recommended that it pass on all of them.

The court could say as early as Monday if it followed Francisco’s recommendation but, as the “Tenth Justice” moniker suggests, it usually does.

For instance, at this conference last year, Francisco and his office recommended three of the four cases that they were asked about and the court took all three.

Assuming the justices follow his recommendation this time, it will leave them short of a full docket for March and April. Those are the only two argument months not already scheduled for the term that began in October and ends in late June.

The SG development is the latest twist in a court term shadowed by Brett Kavanaugh’s searing confirmation battle, and colored further by unusual requests by Francisco for the justices to leapfrog the lower courts, and questions about their pace of work and seeming aversion to hot-button issues.

Lighter Load, Deadlines

The Supreme Court’s modern-day appetite for cases has fallen sharply. Recent terms saw fewer than 70 cases argued. The court heard 32 cases from October to December, and 11 are set for January argument. Just eight are scheduled for February.

The court still needs to fill out its calendar for the two spring months of arguments, each of which has room for about a dozen cases.

After agreeing to hear six additional cases on Friday, the court has 13 that they haven’t yet scheduled. Two added to the March argument calendar involve the hot-button issue of partisan gerrymandering.

The time for making decisions is closing fast. The deadline for adding new cases without having to expedite briefing is mid-January.

Francisco, though, urged that the justices turn away a challenge to California’s foie gras ban, a sovereign immunity question involving art stolen by the Nazis, and interstate conflicts over egg production and other farming regulations.

But the court still has several high-profile petitions to consider before that deadline, including LGBT discrimination and Indiana’s stringent anti-abortion law.

Informal Deadlines

To help fill out its calendar, the justices will sometimes “call for the views of the solicitor general"—known among practitioners as a “CVSG.”

The requests—which require at least four justices to sign on—asks the solicitor general to weigh in on whether the court should take up an issue or send it away.

It’s no coincidence that the SG’s responses—which were all filed in late-November or December—come as the court is approaching it’s mid-January deadline, even though the court asked for the SG’s views in these cases last spring.

Although there are usually no formal deadlines for the SG to respond, there are informal ones that the office follows when possible that are “tied the Court’s own schedule,” former Solicitor General Gregory Garre, now of Latham & Watkins LLC, told Bloomberg Law.

One is an informal December cut off that allows the court to grant and decide a case before the end of the term, Garre said.

The other is a May cut off, which allows the court to grant the case before the end of the term, even though it will be argued during the next one. That allows briefing to get underway while the justices are on their summer recess.

Immigration Preemption

Francisco did recommend that the court take two other cases that the justices asked his office to weigh in on, but neither were considered at Friday’s conference. It’s still possible that the justices consider these before the mid-January cut-off date.

One involves an immigration law banning the use of information on a federal employment-authorization form—or I-9—for non-immigration purposes.

The Kansas Supreme Court prohibited the state from convicting immigrants for using stolen Social Security numbers, finding the prosecutions preempted by the federal law.

The other, filed on Thursday, recommends that the court weigh in on a Clean Water Act case. The lower federal courts are split on whether the landmark environmental law covers groundwater.

(updates throughout with new cases)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.