NOTE ON THE PACE OF SCV MERITS RULINGS

(Posted January 28, 2021) We have no rulings today, published or unpublished, from the SCV, so let’s take up a new topic.

I keep copies of every Supreme Court of Virginia argument docket, going back to 2015. That enables me to keep track of the dates when each opinion and order comes down. I measure the number of weeks between oral argument and decision, so I can get a sense for the court’s decisionmaking pace.

Right now, the “oldest” (measured from oral-argument date) undecided case on the court’s merits docket is a criminal appeal, Albritton v. Commonwealth, from the September 2020 docket. The earliest that that decision will come down is now the first week of February, a delay of almost five months.

That sounds like a very long time, and measured by the average pace, it really is. But the court issued opinions/orders in all of the other cases on that docket fairly quickly: two came down four weeks after session week, four more five weeks after, and one each six, eight, and nine weeks after. That’s an average of 5½ weeks. At least measured by the pre-2015 protocol – there were only six opinion days per year back then, most spaced seven weeks apart – they’re coming out fairly quickly, with Albritton the obvious current outlier.

From the November 2020 session, there are six undecided appeals out of the 14 argued that week, including the expedited appeal in the Charlottesville statue case. But again, the court issued a bunch of early rulings – one after four weeks and five more after just five weeks.

What I think we’re seeing is a form of decisional inequality – not in the nature of the decisions, but in their timing. To illustrate what I mean, I’ll turn to my college major, Economics. You may have seen a reference recently to a K-shaped economic recovery from a recession. Economists usually refer to recoveries as being U-shaped (with a prolonged “bottom” followed by a gradual upturn) or V-shaped (the best kind, with a quick recovery). There’s also a W-shaped recovery – the dreaded double-dip recession – and the ultimate disaster, a theoretical L-shaped recovery, which isn’t a recovery at all; the economy never rebounds.

The concept of K-shape is where some sectors of the economy rebound nicely, V-shaped, while others don’t recover at all, the bottom “branch” of the K. Last year showed a K-shaped dynamic, with some folks (Jeff Bezos; big stock-market investors) making tons of money, while a great many Americans suffered awful economic hardship due to business closures, job losses, etc. A $600 stimulus check won’t help those folks much.

But let’s leave the field of Economics and return to the appellate world. We’re now seeing this K-shape dynamic in SCV opinions. The majority of those decisions are coming down fairly promptly. But some are lingering for a long, long time. That could be because the issues are complex or especially difficult, or because someone’s writing and polishing a dissent, or some other reason.

Here’s an excellent illustration: The June 2020 micro-session featured just five appeals. If there were ever to be a rocket docket in the SCV, this was destined to be it; there are more justices on the court than there were majority opinions to author. As it turns out, the court effectively consolidated two appeals, so there were only four opinions. Those came out in 6, 9, 10, and 24 weeks, respectively.

Pre-2015, the June session was a forlorn one for litigants. You had to wait over three months, the longest gap of the year, to get a ruling. By that measure, the first three opinions of last year’s June session came down quite quickly. But why did one opinion – as it turns out, the one with the consolidated appeals – take so long? Perhaps it was because this one, Evans v. Commonwealth, was a 4-3 ruling on a close-call question of former jeopardy. I have zero doubt that the authors of the two opinions – one majority, one dissent – exchanged drafts more than once before issuing them.

One more example: The April session last year featured 22 appeals – a number we’re not likely to see again for more than a year, and maybe multiple years, if ever. (The “if ever” conjecture depends on the fate of SB 1261, to expand the jurisdiction of the Court of Appeals and turn the Supreme Court into a pure-certiorari tribunal. If that passes, expect SCV micro-dockets as a matter of routine.) Fourteen of the decisions came down in six weeks or fewer, and all but four arrived within nine weeks. But the other four took a great deal of time: 15 weeks, 22 weeks, 27 weeks, and the all-time record as far as I know, Jones v. Phillips, which arrived December 3, 33 weeks after being argued on April 14. Jones was another 4-3 decision; it tackled an obscure question over garnishment of insurance proceeds, something that you have to admit doesn’t come around every opinion day.

So, is the court’s decisionmaking pace fast, or slow? The best answer to this question is “Yes.” When the appeal presents complex, close-call issues, the court takes its time. In simpler cases, litigants quite often get rulings faster than they would back when we only had six opinion days a year.