The most unpredictable factor in the life of a Supreme Court case is when oral argument will be scheduled after briefing is complete. (See here and here.) Two years ago, however, the court took some of the surprise out of the process by starting to send letters alerting counsel that the court would soon set argument and asking if there was good cause to not schedule the argument on particular upcoming calendars. The court later revised the letter to include a detailed explanation of what does and does not constitute good cause.
For counsel believing there is good cause to not set argument on a calendar, there are two pieces of advice. First, respond quickly, within seven days of receiving the court’s letter. For example, the court rejected as untimely one request that was filed 15 days after the court sent its oral argument letter. Second, pay attention to what the court considers good cause. There have been numerous cases where the court has told counsel that a request to avoid certain argument dates “is not supported by good cause.” (See, e.g., here and here.)
So, how long after the court sends an oral argument letter will the court actually schedule argument if counsel does not make a good-cause request to avoid a certain calendar? It varies. But, from looking at all the cases argued since the court started sending the letters, more cases than not are argued two to three months after the letter goes out.
There are a significant number of outliers, however. For example, in In re Ricardo P., the court sent an oral argument letter in April 2017, saying that argument could be set “on the September 2017 calendar or thereafter.” The emphasis in that letter is definitely on “thereafter,” because, now 15 months after sending the letter, the court has still not scheduled argument. We also saw at least 13 cases where argument wasn’t held until 150 to 419 days after the letter was sent.
Also, don’t necessarily take at face value what the court states as the earliest possible argument calendar. For example, in Ramirez v. City of Gardena, which the Los Angeles Times wrote about today, the court’s April 10 letter said argument could be set “on the September 2018 calendar or thereafter,” but the case was then scheduled for June.