The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Why Can't The Court Schedule Emergency Docket Conferences?
Justice Kagan peels back the curtain on the Court's failure to schedule conferences for emergency cases.
Friday evening, the Court decided Department of State v. AIDS Vaccine Advocacy Coalition. This is the second time this case with this name has come to the Supreme Court. In the earlier iteration, the Court partially ruled against the Trump Administration. This time, the case concerned whether plaintiffs can bring a suit to enforce the Impoundment Control Act (ICA) through the Administrative Procedure Act (APA). By a (likely) 6-3 vote, the Court found that the ICA (likely) precludes suits under the APA. Justice Kagan wrote an eight-page dissent, joined by Justices Sotomayor and Jackson.
The Court offered a few sentences of reasoning, which I suppose is an improvement over past practices. Then again, if Justice Kagan could muster a detailed dissent, the majority could have mustered something more in depth.
Kagan, once again, complains about the emergency docket process:
As even that much suggests, this case is not a likely candidate for a grant of emergency relief. Per usual on our emergency docket, we have had to consider this applicationon a short fuse—less than three weeks. We have done so with scant briefing, no oral argument, and no opportunity to deliberate in conference. Because of how this case came to us, we likewise do not have the benefit of a pertinent court of appeals decision, much less a set of decisions expressing different views. In a few weeks' time—when we turn to our regular docket—we will decide cases of far less import with far more process and reflection.
Justice Kagan makes two familiar criticisms: "scant" briefing and lack of oral arguments.
But Justice Kagan peels back the curtain a bit, and reveals something that I don't think has been acknowledged before: the Justices did not even have the opportunity to deliberate in conference. The Court publishes the calendar of when regular conferences are scheduled. And those conferences are not held over the summer break. The Court will soon hold the long conference, which will be the first official conference since the end of last term.
I had assumed, perhaps wrongly, that the Justices hold ad hoc conferences for emergency petitions. Presumably, the Justices could announce how they will vote on an application, a majority opinion could be assigned, as well as the dissent. Maybe such conferences could be done in person, or remotely for Justices who are traveling. But Justice Kagan tells us that there was no conference for this case. And I have to think that other emergency applications likewise did not have a conference.
Why can't the Court hold an emergency conference? A one-hour Zoom call could allow each Justice to express his or her view, and a majority could coalesce around a line of reasoning. I have to imagine there are memos circulated between the Justices. And perhaps some Justices do chat with each other (such as the members of the dissent). Does the Chief Justice just circulate an order that others are supposed to join? Kagan explains that there is no opportunity for all of the Justices to hash out a fast-moving case. Even if there is no time to convene oral argument, there should be time to convene a conference.
Who is to blame here? For once, I think the blame actually would fall with the Chief Justice Roberts. As the presiding officer, Roberts could convene a conference on short notice. But Roberts didn't call such a conference, even after Kagan complained there was no conference in her (draft) dissent. For all we know, Justices Kagan, Sotomayor, and Jackson have repeatedly called for conferences, and Roberts rebuffed those requests--thus leading Kagan to peel back the curtain in her dissent.
There may be other ways to assign the blame. Justice Barrett has been barnstorming the country recently to promote her book. Could this promotional travels have inhibited her from participating in a conference? Who knows? But Kagan threw down the gauntlet. And scrutinizing Barrett's travel schedule is now fair game. Justices Sotomayor and Jackson likewise have been promoting their books, but I have to imagine that they would have promptly attended the conference clamored for in their dissent.
What is the solution? Well, I think Proposal #3 from my article, Bilateral Judicial Reform, would be helpful: "Mandate that the Supreme Court remains in session year-round, with at least one public sitting for oral argument and one conference per calendar month."
I explained:
Proposal #3 would eliminate the current October-June schedule. In-stead, the Justices would remain in session year-round. Each month, the Jus-tices would hold at least one public sitting for oral argument, which would entail at least one conference to vote on the argued cases. This proposal has several virtues. The Justices would no longer feel compelled to rush out a decision argued in April by the end of June, solely to meet some artificial vacation-induced deadline. This proposal would also allow the Court to grant cert petitions year-round and avoid the dead pool that is the long conference. This proposal can be implemented by the Court on its own or through Congress.
If there are regularly scheduled oral arguments and conferences, it would be easy enough to slot emergency cases into those sessions.
This calendar would make it harder for a third of the Court to travel the country to sell their books. Good. Their job is to decide cases, not sell books.
Proposal #2 from my article is probably my most popular one: "Impose statutory caps for outside income earned through book royalties, advances, and other similar business dealings." This rule would obviate many other problems. Justice who are not incentivized to sell their books will travel less.
