Clerk of the Supreme Court of North Carolina Amy Funderburk announced by e-mail Friday that December oral arguments in the Supreme Court will be postponed until after the new year.
Such schedule changes are the norm in election years. It is common practice for the Court not to hold oral arguments between election day and December 31 in years in which an incumbent is leaving the Court. In 2016, for example, the Court likewise closed the doors to the courtroom after its mid-October sitting, as Justice Morgan won a seat on the Court in the November election. Similar scheduling changes occurred in 2014 (Justice Ervin) and in 2010 (Justice Jackson), but not in 2008, as there was no turnover on the Court from that election cycle. There were no December arguments held in 2012, after then-Justice Timmons-Goodson announced her retirement in late November of that year.
In my view, there are two main benefits to emptying the oral-argument calendar during this transition period.
First, there is an ephemeral sense in which it is “fair” to have pending cases heard by the Court as constituted by the electorate, at least as long as we have our current system of electing judges.
More importantly, your Supreme Court has a lot of work to do between now and December 31! Think about it–all of the cases that have been heard by the current Court have to be decided by December 31. Usually, but not always, those cases are not just decided (that is, voted upon) by the end of the year, but opinions are issued by then as well.
Take 2016, for example. The Court held its last oral argument of the year on October 12. That week’s sitting put 13 more cases in the hopper, not to mention the four cases that had been heard on August 31. Of those 17 cases, opinions or other dispositions were published by year’s end in 15 of them–mostly on December 21 (just before the holiday recess). One of the cases generated a majority and two dissenting opinions and was not decided until late January 2017–by a 4-2 vote, with neither the outgoing nor incoming justice joining the decision. (The other case resolved after argument in a mysterious “extra-docketal” way. Yes, I just made up the word “extra-docketal.”)
So what should we expect to see from the Supreme Court between now and December 31 of this year? A flurry of decisions.
The Court heard a staggering 20 arguments in August and another six in October. Of those 26 cases, 15 have not yet been decided, by my count. The 11 that have already been decided were largely disposed of summarily: per curiam affirmance, discretionary review improvidently allowed, etc. The 15 cases left are probably the “harder” ones or at least the ones that are more likely to garner written opinions. And, of course, there are a few cases that were argued last term (or even earlier) that still haven’t been decided.
The Court is scheduled to release opinions on November 30, 2018. I expect it will release a few more in December as well.
So while you are eating turkey and cranberries, consider offering a bit of spare thanks to our seven justices who will be scurrying to get the business of the Court completed before the acorn drops.