SOME APPELLATE OBSERVATIONS
(Posted April 28, 2022) We get no new decisions today from the Supreme Court of Virginia, so here are a few notes on what’s going on in the appellate world.
No new Robes
The General Assembly met yesterday for the veto session, but didn’t fill the two vacancies on the SCV. As I understand it, that session still hasn’t adjourned sine die, so those seats will remain vacant for now; the Governor can’t fill them as long as the legislature is still technically in session. I have no word yet on when they’ll next gather.
This means that the Supreme Court is operating close to the minimum number of justices to constitute a full court. We have five active justices and three senior justices for now; I strongly suspect that Justice Mims will join the latter group shortly. In last week’s April session, all three senior justices took part, so there were, as far as I know, no appeals argued to a six-member court.
In case you’re wondering, it only takes four justices to meet the Code’s quorum requirement, so they’re not really skating on thin ice. But a smaller court means more work for each justice. I’m confident that the current justices are eager to have the two vacancies filled.
No civil arguments yet in CAV
The Court of Appeals of Virginia continues to periodically update its argument dockets. From this web page you can click and see which appeals will come before the court on given dates. The latest date currently scheduled is in June. As far as I can tell, it doesn’t include any appeals filed under the new appeal-of-right system.
This was entirely predictable. It takes time for an appeal to mature to the point where the Clerk can calendar it for argument. There are briefs to file and bench memoranda to prepare. I expect to see the first of these appeals on an argument docket this summer or in the early autumn.
SCOTUS completes April sitting
The Supreme Court of the United States has heard its last oral arguments of October Term 2021. The Court closed the argument docket yesterday, and now has 37 undecided appeals argued in this term. I count nine more weeks between now and the end of June, when the Court traditionally completes its term by handing down decisions in all cases submitted.
The math is pretty easy; that’s four decisions per week to clear out the docket. But if you expect a steady diet of four opinions per week, you’ll be in famine mode for a time. The past few years teach us that the Court will hold many of the decisions until the second half of June, at which point we’ll get them in a rush. Expect the hot-button decisions, such as Dobbs v. Jackson Women’s Health (abortion) and Carson v. Makin (public funding of religious schools) to arrive at or near the end of that month.
A few scattered statistics
My readers know that I can’t resist peering at tables and charts to see what useful items I can glean from them. I checked the two Virginia appellate case-information web pages yesterday, and saw that business is down significantly in the SCV and up significantly in the CAV. This fact is about as surprising as the time of today’s sunrise; we all knew to expect these trends.
CAV Clerk John Vollino had opened 642 new files as of this week, portending something on the order of 2,000 for the year. That’s up significantly over 2020 (the last year for which I have a stats report), but only by something like 45%; it isn’t the doubling that some doomsayers foretold. The increase in the size of the court will more than make up for that rise in incoming cases.
Meanwhile, SCV Clerk Muriel Pitney has opened only 246 files this year. We’re almost 1/3 through the year, so that projects to a yearly total of somewhere in the 750-800 range. I suspect that the eventual total will be at or above 800, because some CAV appeals will make their way through a merits decision by late autumn, and from those, some disgruntled litigants – God, how I love disgruntled litigants – will choose to try to hit the writ lottery in the Supreme Court. I perceive that their success rate will be tiny, but where there’s appellate life, there’s hope.
Meanwhile, the justices have granted 15 petitions for appeal thus far in 2022. That’s through two of the court’s six writ-panel dockets, so I suspect that we really are looking at something close to 50 merits decisions in 2022 — easily the smallest number going back as far as I have statistics, which is to 1965.