Once again, it’s that time of year.  Every year, the Supreme Court starts a new term on the first Monday in October.  This is the first full term for the new alignment of justices.  While one term is not enough to predict the future, it seems that we have a 2-3-1-2-1 court with Justices Thomas and Alito on the far right with the three Trump justices (it is unclear where they line up and there are some weird issues where they flip) on the right,  Chief Justice Roberts on the center-right, Justices Breyer and Kagan on the center-left and Justice Sotomayor on the left.

As noted in pervious years, the Supreme Court follows a routine during their sittings of four week cycles (a/k/a argument sessions).  In Week 1, the Supreme Court issues an “order list” on Monday , holds arguments on Monday, Tuesday, and Wednesday, and meets in a conference on Friday.  The same thing occurs in Week 2.  In Week 3, there is an order list issued on Monday.  Finally, in Week 4, the Supreme Court meets in a conference on Friday.  At the conference, the Supreme Court reviews that weeks arguments (if any) and takes a tentative vote on each of the cases.  Based on that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) gets to decide which justice gets the opinion.  Also at the conference, the Supreme Court reviews some of the pending petitions for certiorari (the formal name for an application seeking Supreme Court review of a lower court decision).  (If a justice believes that an application potentially should be granted, it is added to the agenda for the weekly conference.  If no justice believes that an application should be granted, it is denied.)  During the first half of the term, the Supreme Court tends to announce grants of certiorari immediately after the conference to give the parties three more days to complete their written legal arguments (called briefs).   The Monday order list includes any grants not previously announced, some summary reversals (which is supposed to be limited to lower court decisions that are so clearly wrong that further argument is not needed), and, mostly, denials of certiorari.  As noted above, most cases are denied at the initial conference (and the Supreme Court website contains a feature that allows you to run a docket search on a case to see its current status).  In recent years, if the Supreme Court is interested in a case, the justices have typically “relisted” the case for a second conference to make sure that there is no procedural flaw that will prevent consideration of the main issue.  While the Supreme Court typically has a four-week cycle, the December and January sessions tend to have a six week cycle (to push the January sitting past New Year’s Day and to get the February session past the worst part of winter).   If there are opinions on argued cases, they can be announced at any time but usually are announced immediately before the Tuesday and Wednesday arguments.    The Supreme Court calendar features seven argument sessions.  After the last argument session, May and June are spent finalizing the remaining opinions from the year.  After the Supreme Court releases its last opinion, they recess for the summer.  Even during the summer recess, there are still some orders — periodic order lists addressing motions for rehearing (which are routinely denied) and miscellaneous orders on emergency application).

As noted above, during the argument sessions, there are six days set for argument (unless a holiday falls on one of those six days).  On a typical day, there are two arguments (of approximately one hour each) in the morning.  Rarely, there are additional afternoon arguments.  More often, there is only one argument on a day.  The argument docket for a month tends to be released approximately two months prior to the argument.    There are currently nine cases set for October and nine cases set for November.

From the perspective of “hot button” “political” cases, this term starts slowly.  In October, the first big case is Zubaydah involving the “state secrets” privilege (which allows the government to block discovery or have a case dismissed if release of that information would compromise national security).  The second big case is Cameron.  Officially, the issue in Cameron is who gets to decide on behalf of a state if it wants to appeal an adverse decision.  The underlying issue, however, is Kentucky’s abortion law which the Attorney General wanted to defend while the Governor wanted to accept the lower court ruling striking down parts of the law.  The final big case from October is Tsaernev (the Boston Marathon bomber case). The main issue in this case is how courts should handle pre-trial publicity.  While for the most part, I tend not to include criminal cases in this post, because the issues tend to be technical rather than political, this case will certainly get media coverage that most criminal cases do not get.

in November, there is another case that is nominally criminal but involves significant issues of religious freedom — Ramirez.  This case involves the role of clergy during executions.  Federal law — specifically the Religious Land Use and Institutionalized Persons Act (RLUIPA) — gives additional rights to inmates to challenge facially-neutral state rules that impact there ability to practice their religion.  (The average person does not have this right to challenge state laws based on religious belief and must show a First Amendment violation).  RLUIPA is similar to the Religious Freedom Restoration Act that applies to federal laws which has been invoked to gain exemptions from the employer mandates regarding health insurance coverage.  The big question for Ramirez is how the courts will determine what weight to give to the inmate’s assertions of religion (specifically the request to have the clergy “lay his hand” on the inmate during the execution) against the State’s interest in securely carrying out the execution.

November has other cases that could get interesting.  Wilson concerns whether a political body can censure a member for comments made during a legislative speech.  Bruen is another case from New York involving the Second Amendment and the right’s attempt to get the Supreme Court to decide the standards that apply to cases raising a Second Amendment challenge.  Fazaga is another case involving the state secrets doctrine, this time in the context of the Foreign Intelligence Surveillance Act.  Finally, Austin is a First Amendment challenge to sign restrictions in a zoning ordinance (specifically whether having different rules based on whether a sign is on-premises or off-premises — a typical feature in zoning ordinances — is “content neutral”?

At this point, the Supreme Court has not yet announced the December docket, but there are several cases that are likely to be on the December (or January) docket.  Those cases will be the subject of Part II next week.