The Texas Supreme Court, however, seems to have had difficulty filling out its announced spring argument calendar. The Court’s sitting next week has been reduced from three days down to two. And there is a sitting coming up the first week of February in which the Court so far has just one case scheduled out of nine possible slots. (( The one case now scheduled for February had actually originally been scheduled for January. ))
This Friday’s weekly order list is the last that would give counsel 21 days to prepare for the February argument sitting. (( That can be a short time to prepare, especially for a case in which you haven’t written a brief or re-read the record in several months (or more), a concern I raised when this same thing happened with last year’s February sitting. )) So, the Court may grant review in a number of cases tomorrow. Or it may simply cancel most of the sitting and wait until March.
Last year, at about this same time, the Court faced the same problem. It had only five cases scheduled for the February sitting.
What does this mean that this has happened to years in a row? It’s hard to say. Here are the usual reasons people suggest:
One possibility is that the intermediate courts of appeals are themselves doing a good enough job sorting out the conflicts and novel questions in Texas law. That’s the explanation the U.S. Supreme Court gives for its own declining oral argument calendar.
Another is that the Court is accepting cases at a normal rate but that litigants are just filing fewer petitions for review. I haven’t checked how the data fits that theory.
Still another is that the bar is not doing a good enough job bringing forward the right issues — or doing so in the right way to catch the Court’s attention. That possibility is unflattering, but real.
But there are some other factors that might be in play, given the unique nature of the Texas Supreme Court’s process.
Is the “submarine docket” picking up cases that otherwise might be argued?
As frequent readers of the blog know, the Texas Supreme Court in recent years has issued about half of its merits decisions under Rule 59.1 — which means that the Court simply issues an opinion without holding oral argument or a formal submission of the case that signals to the party that the Court might soon act. Because these cases can linger for many months on the Court’s docket and be issued without warning, I call this the “submarine docket.”
At any given time, there are “submarine docket” cases floating around the Court’s chambers with draft opinions being researched, written, and even circulated for possible decision. During that time, counsel and litigants are in the dark about whether their case is receiving so much attention.
Perhaps oral argument would help the Court in more of these cases than is first apparent.
Are the Court’s choices about which cases to set for argument now being influenced by the presence of the cameras in the courtroom?
To be clear, I have no evidence to suggest this is a factor, except that the Justices are human. Preparing for oral arguments takes time, and sitting on the bench in front of a camera — to pose a (perhaps hypothetical) question that will be scrutinized not only by the bar, but by your future political opponents — is understandably stressful. If the Court believes it can decide a case without argument, the presence of the cameras may be one more weight on the scale against inviting argument.