Update on happenings the Texas Supreme Court, delivered in October 2016 to the Dallas Bar Association. (This slide deck does not include the section of the talk about the different ways that state supreme courts break ties.)
20 30 40 50 60 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 47 50 57 45 26 38 5 7 12 6 0 0 Causes that have been argued but not yet decided are “carried over” to the next term. * The Court’s official count for 2011 is that only 4 causes were carried over. My count includes Bison Building Materials v. Aldridge, No. 06-1084, which was abated on August 31, 2011 but reinstated to the docket the following week. *
Nov Dec Jan Feb Mar Apr May Jun Jul Aug 2017 2016 2015 2014 The new pattern at SCOTX (Grants in petitions for review only; excludes Rule 59.1 opinions)
attach any record excerpts ✤ Reviewed by a mix of justices and staff; court might choose to study ✤ Court (almost always) asks for full merits briefing before grant ✤ Staff and justices study briefs ✤ Then a grant decision is made, as few as 21 days before OA ✤ Petitions up to 9000 words; must include (edited-down) record ✤ Staff does initial review; justices discuss and may request study ✤ Court decides whether to grant before triggering merits briefs ✤ Merits briefs about substance, not importance; both sides have amici ✤ OA happens months after grant, to facilitate the merits briefs
Petitions 4500 words; need not attach any record excerpts ✤ Reviewed by a mix of justices and staff; court might choose to study ✤ Court (almost always) asks for full merits briefing before grant ✤ Staff and justices study briefs ✤ Then a grant decision is made, as few as 21 days before OA ✤ Petitions up to 9000 words; must include (edited-down) record ✤ Staff does initial review; justices discuss and may request study ✤ Court decides whether to grant before triggering merits briefs ✤ Merits briefs about substance, not importance; both sides have amici ✤ OA happens months after grant, to facilitate the merits briefs SCOTX Practice SCOTUS Practice Court grants some immediately, and requests briefs in others
grant, deny, or study. Even if only a small percentage are granted immediately, they will comprise a significant part of the argued docket. And those selected cases will reach oral argument, and an opinion, more quickly. - * In those “obvious grants,” the parties can then focus on the legal merits, without the dance of arguing about “importance.” This also frees up any amici who support the Respondent to come forward. And signals all amici that a decision will, actually, be made—and that they should not wait until rehearing to speak up. - * Parties in borderline cases will know where they stand, and can adjust accordingly. - Downsides: - * The petitions, and the responses, become more crucial. That benefits those who hire good counsel, and it penalizes those who do not. - SCOTUS Rule 15.2: “Any objection to consideration of a question presented based on what occurred in the proceedings below, if the objection does not go to jurisdiction, may be deemed waived unless called to the Court’s attention in the brief in opposition.” - * A few more cases might end up as a “DIG” (dismissal as improvidently granted) if they do not live up to the Petition’s billing.
separate opinion, 2016 Term Hecht Green Johnson Willett Guzman Lehrmann Boyd Devine Brown -10 -6 -2 2 6 10 14 18 22 Majority Concurrence Concur/Dissent Dissent
2011 2012 2013 2014 2015 2016 21% 22% 17% 17% 10% 12% 7% 7% 9% Affirmance rate Granted petitions that are “affirmed” 2008 - 2015 are from OCA reports; 2016 is an estimate for this presentation
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