A QUICK SCAN OF THE APPELLATE FIELD

(Posted August 26, 2024) We SCV consumers are on a forced diet as far as opinions are concerned, so let’s see what’s cookin’ elsewhere in our arena, starting with a topic that will most affect my readers.

Programming note

I’ve been warning you, so don’t claim that this comes as a surprise: I’ll be calling it a career in a very few weeks, as I have only one more oral argument left. I plan to consider myself retired as soon as I walk out of that courtroom.

VANA won’t survive that retirement. My future posts here will include an overdue statistical report and one last wrap-up essay. I’ll probably publish the latter, my final post after almost 20 years here, during the first week of September.

After that, I’ll leave the site active through the month of September, but starting in October, you should expect to receive a 404 error message at this address. If there’s anything here that you really liked, now would be the time to run off a copy.

Given the absence of any pending argued SCV appeals, this is as good a time as any to end things. See the OJ caveat below, but the next published opinion probably won’t arrive for another two months. That means I won’t be leaving anyone hanging.

September argument dockets

The Supreme Court of Virginia has released the schedule for the September session. There are six appeals on it. The court will convene September 10-11, hearing three sets of arguments per day. The next published opinions will come from this batch, probably starting in late October, unless we get a ruling in an OJ case for which there’s no oral argument.

Once upon a docket, the September session was one of the court’s busiest. That’s a function of the calendar: The gap between the June and September sessions, at 3+ months, is the longest on the court’s calendar. That means more time for appeals in the pipeline to mature for argument and thus land a spot on the session docket.

Those bountiful days are gone. Last year, the September docket featured five appeals; there were seven in September 2022. This reflects the overall paucity of merits appeals. The September session will bring to just 31 the number of merits arguments considered by the justices. That’s for the whole year. By way of comparison, the Supreme Court’s September 2015 docket alone comprised 22 appeals. (I have the docket sheets to prove it.)

The court will gather just once more in 2024, the week of Halloween. I wish I could forecast a bumper crop of appeals that session. But the justices have quite obviously made a conscious decision to hear a tiny number of appeals now. Incoming business, in the form of petitions for appeal, have indeed slowed; but grants have crashed. This isn’t mere coincidence.

Meanwhile, the Fourth Circuit will send out a road-show panel to North Carolina Central University’s Law School in Durham, also on September 10, and will convene regular argument panels in Richmond two weeks after that. The Court of Appeals of Virginia is the judicial equivalent of Waffle House: We Never Close. That court has continued to hear oral arguments all summer long, at least once a month in each of Virginia’s four regions.

A study in concord

One of the benefits of studying a given court’s rulings over a long period is that you notice trends that wouldn’t be immediately obvious to the casual observer. In that vein, I thought I had seen remarkable agreement between the votes of SCV Justices Kelsey and Chafin. I decided to check into a decidedly non-secret database – the court’s published and unpublished rulings – to see how the votes shake out. This note will be an appetizer for the coming statistical essay.

I know what you’re thinking: What was your first clue, Sherlock? These are the two most conservative justices on the Supreme Court of Virginia, so they’ll naturally agree quite often. But my survey showed a remarkable correlation; more so than a simple agreement in judicial philosophy would portend.

Justice Chafin joined the court in August 2019, so the two have been on the court together for right at five years. In that time, I counted 294 decisions – published opinions and unpubs – in which the two of them both participated. I excluded, for obvious reasons, any decision where one or both sat out the proceedings.

In that time, running up to and including the court’s most recent decision earlier this month, the two have cast identical votes 292 times, and have differed only twice, most recently in VEPCO v. SCC, issued just over three years ago (July 2021). That’s a concord of 99.3%, a rate that your favorite appellate stats geek found astonishing despite their well-aligned views.

I hasten to add that the Supreme Court of Virginia hands down a lot of unanimous opinions. By far the most common outcome in an appeal is a 7-0 decision. But when the justices divide, Kelsey and Chafin hold firm to each other. Their votes have been absolutely identical to each other’s in something like the last 150 straight SCV decisions. I don’t expect that to change in the near future.