The dockets of the cases scheduled for argument on the Supreme Court’s January calendar reveal what looks like a new court policy, or actually a return to an old policy, but with a twist.
Two or three weeks before the court announced its calendar, the court sent an oral argument letter to counsel in each case.
The letter advised that the court could set the case for argument within the next few months, directed counsel to the court’s oral argument dates, and instructed them to “inform the court immediately” if there was good cause not to schedule argument for a particular day. The letter went on to warn, “Once the court files an order setting this case for oral argument, that date will not be changed absent exceptional cause, such as a medical emergency.”
It used to be that the warning part of the letter was the court’s policy, but back then counsel didn’t get a warning letter. More recently, however, it became almost routine for the court to continue oral arguments on an attorney’s request, even when the request was made after the calendar was announced. Now, the court says it will be accommodating of counsel’s schedule, but only up to a point. And the court is giving fair warning; you don’t have to rely on a a blog post for advice. (The court has been sending somewhat similar notices of impending arguments in death penalty appeals (e.g., here), but the main purpose of those notices seems to be to advise counsel that the court will be expecting a “focus letter” — identifying the subject of counsel’s argument with a short statement of the issue — within 10 days of the scheduling of argument.)
Any early test of the new policy’s limits came in one January calendar case. An attorney there sent a notice that she’d be unavailable January 3 through 6. But she did not “inform the court immediately.” Instead, the notice was filed 17 days after the court sent its warning letter. The day after the notice’s filing, the court scheduled the case for a January 5 argument.