This post looks ahead slightly past next week’s argument sitting to see how the Court’s February argument calendar is shaping up.
The Court has set only five cases for February’s nine potential argument slots. And this Friday, January 11th, is the last regular order list remaining at least 21 days before the Court’s scheduled sitting on the 5th, 6th, and 7th of February.
What does that mean for tomorrow’s orders and for any cases that might be granted so shortly before argument?
The Court has several options: * grant up to four cases this Friday to be heard in February, * grant one case and then cancel the last day of the February sitting, or * proceed with a calendar that’s less than full. ((Unlike the United States Supreme Court, which has been under pressure from the bar to decide a greater number of cases, the Texas Supreme Court has not been criticized for the number of cases it sets for argument. It’s very possible that the Court may proceed with a partial argument calendar now.))
Short-Fuse Oral Arguments
When the Court puts such a short fuse on the argument date, counsel are put in a challenging position. On a compressed schedule, it can be hard to fit in the level of serious preparation that an argument before the Texas Supreme Court deserves — in particular, arranging a moot argument before a panel that has made itself familiar with the briefs and can test your positions from a skeptical perspective. Without sufficient preparation, oral argument is rarely helpful to the client or to the Court.
The short fuse can also be problematic for potential amici — especially those who would support the Respondent. In practice, the window for filing an effective amicus brief starts to close at oral argument. If an amicus brief is filed long enough before argument to permit the Court to digest its contents, then the brief can influence the Court’s initial vote on how to dispose of the case and — as happens with some frequency — form the basis of some of the Court’s questions at oral argument. By contrast, a post-submission amicus brief is swimming upstream. Once the Court has already voted to resolve the case differently than the amicus suggests, the brief may meet a very skeptical audience (the Justice assigned to write the Court’s initial draft opinion).
This window is even shorter for Respondents. That’s because amicus briefs carry with them the implicit message that the case is an important one. An amicus brief filed in support of the Respondent before the Court grants argument can be a tricky thing; its very presence might make the Court more likely to grant the case to resolve the question rather than denying the petition. Thus, amici wishing to support the Respondent can find themselves in a time crunch very quickly. When the Court grants the case on a short fuse, such amici have only a couple of weeks in which to file an effective brief.