October 14, 2010

This might take a while (or not)

When clients ask how long it will be until the Supreme Court decides a case, we tell them it depends on the length of three time periods, only two of which are predictable. We can give a ballpark estimate of how long briefing will take: give or take an extension or two, the rules set the deadlines for the parties’ and amicus briefs. We can also tell them that the Supreme Court will issue its opinion within 90 days after it hears oral argument. So, the clients ask, how long does it take the court to schedule oral argument? That we just don’t know.

Sometimes the court is really fast in scheduling oral argument. Other cases take quite a bit longer.

The court recently announced its November calendar. It reflects a range of waiting-for-argument times, although none of the cases will set a record on either end of the spectrum.

Of the six non-capital cases on the calendar, the award for longest wait goes to People v. Soto. The court granted review in December 2008 and the Reply Brief was filed in July 2009. It’s safe to say that, with oral argument 16 months after the last brief was filed, the case is not very fresh in the attorneys’ minds. By contrast, In re Enforcement Against Dana Point Safe Harbor Collective, a case we discussed in this post, will be argued less than eight months after the court granted review and just a bit over 3 months after the Reply Brief.

Death penalty cases are in their own category. The judgments in the four capital appeals on the November calendar are all over ten years old. One of them, People v. Booker, has been fully briefed for over two and a half years. Interestingly, the oldest of the cases — the judgment in People v. Jones is from September 1996 — has the shortest time from completion of briefing to oral argument of all the November cases — the Reply Brief was filed on August 17, 2010.

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