LATEST APPELLATE DEVELOPMENTS – WARTIME EDITION
(Posted April 13, 2020) These are not slow news days, even in the appellate sector. Behold:
The Supreme Court of the United States has announced that it will conduct oral arguments by teleconference only in ten appeals next month. I’m not as meticulous a courtwatcher of that Court as I am with the Supreme Court of Virginia, but I strongly suspect that this is unprecedented in our nation’s history. These ten appeals represent half of the cases that the Court has scheduled for the rest of this term. I don’t know if the justices will set the remaining ten for argument in the same way. Getting all of them decided by the Court’s traditional “clearance day” of June 30 will be problematic unless the justices dramatically accelerate their customary pace.
The Fourth Circuit issued an order last month indicating that it would temporarily suspend its internal rule requiring oral argument of any case where it will issue a published opinion. Last week, that court extended its previous order to include the May 5-8 sitting. This makes it highly likely – at least in my mind – that many or perhaps all of the cases calendared for April and May will be decided without oral argument. The court may publish those rulings anyway. This is the last scheduled sitting before the court’s summer recess; it remains to be seen if the emergency will affect the September 9-11 sitting in the next Term.
The Supreme Court of Virginia has issued new guidance to trial courts, permitting telephonic hearings in non-emergency matters with the parties’ consent. The previous order created a split in the circuits, as some courts felt they had no power to adjudicate anything other than emergency issues, while at least one – Norfolk Circuit Court – was willing to take up almost any matter that the parties agreed to submit telephonically. Meanwhile, the SCV is making its oral arguments available by livestream audio for this week’s April session.
The Court of Appeals of Virginia seems to me to have had the smoothest transition to the new normal. That court is hearing oral arguments by teleconference, and will likely continue to swim along with the current until the judicial emergency lifts.
UPDATE 1:15 p.m. — SCOTUSblog has a new post as of about 45 minutes ago, on the development reported above about the U.S. Supreme Court. The Court will hear argument in 13 appeals next month, including three sets of cases that are companions. The remaining seven will be argued in OT 2020, which begins the first Monday in October. The Court has prioritized time-sensitive appeals, such as those relating to faithless electors and the president’s financial information and tax returns. That ensures that those questions will be adjudicated before the November elections.