SOME QUICK APPELLATE NOTES

(Posted May 31, 2024) I’ve noticed a couple of anomalies recently and thought I’d mention them here.

Whither the seniors?

This year brings a noticeable drop-off in the use of senior justices in merits cases at the Supreme Court of Virginia. In only three appeals decided thus far in 2024 have senior justices stepped in – each time, a single substitute for one of the current justices.

Last year’s roll of decisions featured ten substitutions, but there was a good reason for that: Justice Wes Russell recused himself from seven appeals that had made their way through the Court of Appeals while he was there. Another fill-in was required for Justice Mann when the Robes considered an appeal from Fairfax County Circuit, where he presided until his elevation. As these jurists get further removed from their lower-court service, these recusals will become rare.

In years past, senior justices also helped when the court’s caseload was heavy; they stepped in to give the court’s active members a break. With today’s micro-dockets, that really isn’t an issue. Senior-justicehood is much more a part-time job now.

One last point: It’s now been over two years since a senior justice wrote an opinion of the court, or even a dissent. The last such was Senior Justice Charlie Russell’s opinion in Edwards v. Omni Services in May 2022.

A drought across the river, too

I’ve reported here often about the recent collapse of the writ market at Ninth and Franklin, but Those Other Robes have cut back on grants, too. Right now there are only nine granted cases for October Term 2024, which begins in just over four months. That’s surprisingly, even alarmingly, low. (I suppose that the political left is quietly rejoicing that the new sharply conservative Court is taking on less new business, and can thus wreak less mischief.) There are four more order days before the end of OT’23, so the Court may pad its merits docket in the coming month.

As long as we’re on the subject of SCOTUS, I’ll mention one tidbit to counter some popular wisdom that isn’t so accurate after all. I’ve read multiple critiques of the high Court’s alleged decision to slow-walk Trump v. US, the absolute immunity case, on its way to decision. The critics complain that the Court is making us wait all the way unto (presumptively) the end of June for a decision, cutting things perilously close to early November.

But the Court granted cert in the appeal on February 28. Normally an appeal granted at that point wouldn’t be calendared for oral argument until well into the following term – sometime after the First Monday in October. As I see it, the Court accelerated its consideration of the appeal by setting it for oral argument in late April, just eight weeks after the grant. That, folks, is fast work. For comparison’s sake, the usual delay between writ grant and oral argument in the Supreme Court of Virginia is 4-6 months.

Update June 3: My appellate pal George Somerville — now enduring the rigors of a relentless 9-to-5 retirement, seven days a week — has written with a different perspective on the pace of SCOTUS’s work in the case. His views are important enough that I’ve solicited and received his consent to publish those comments here.

I think I understand (at least generally) the impulse that led you to defend the USSCt’s expedited handling of the presidential immunity case; but a more complete analysis would compare its treatment of the insurrectionist disqualification case. When it was important for the electorate to know whether [Trump] could be disqualified for instigating the acts of January 6, the Court moved quickly. But in the view of at least some members (I nominate Thomas & Alito), the electorate does not need to know before November whether he is guilty of genuinely serious felonies; and they will do all that they can to protect us from that knowledge.

Let’s get real for a moment. The arguments for absolute immunity from prosecution on January 6 matters are about as flimsy as can be; and​ to the extent that they have any possible merit, they could best have been adjudicated on a full record, after trial. As is, it appears likely that there will be numerous separate opinions and that all of them (majority included) will address a congeries of hypotheticals.  That’s not how it is supposed to work. The Court should have refused the cert petition or, alternatively, treated the moving papers as merits briefs and summarily affirmed per curiam.

For additional context, I decided to check the dates for two other major appeals involving presidents. In US v. Nixon, the Court received a cert petition on May 24, 1974 and granted it seven days later, on May 31. Oral argument occurred on July 8 and the Court announced its ruling on July 24. That’s two months from cert petition to published opinion.

The all-time record, though, has to be Bush v. Gore. The Court received a cert petition on Friday, December 8, 2000. It granted the petition the next day  — yes, a Saturday — and directed the filing of briefs by Sunday, December 10. The Court convened on Monday, December 11 for oral arguments, and issued the opinion of the court and the dissent on Tuesday, December 12. That’s four days from cert petition to final decision. When the Court wants to accelerate proceedings, it can.