I posted last month about the sharp dropoff in the Texas Supreme Court’s oral arguments and wondered if the Court would grant more cases for its three-day February sitting. The Texas Supreme Court ultimately canceled the last two days of that sitting.

This year’s calendar is shaping up to be particularly light. Whatever the reason, appellate counsel should be aware that oral argument looks like the last thing on the Court’s mind right now.

Is this just a seasonal pattern?

After my post, I had a couple of conversations about whether this was a seasonal effect — that is, whether the Court’s supply of petitions was just running low at the same time each year before it could fill the spring calendar.

There may be some truth to that. The Texas Supreme Court’s calendar roughly fits the school-year calendar. The new clerks join in the fall, the Court starts hearing arguments, and things really ramp up in the spring as the Court continues the work of digesting cases and issuing opinions. During the summer, the Court doesn’t hear arguments and slows down its intake of new cases.

In theory, the Court is running at reduced efficiency in the fall as clerks move up the learning curve while working through the backlog of petitions that built up over the summer. By the time the Court can request briefing in a case, wait for the parties to brief it, and get a study memo from the clerks, it may be too late to set the case for January.

Perhaps, but the argument rate has sharply fallen.

To investigate this further, I looked at the Texas Supreme Court’s activity in 2006, 2007, and 2008. I looked month by month at the Court’s decisions to request full briefing on the merits (which starts the study-memo process) and its later decision to set a case for oral argument. These figures ebb and flow with the seasons.

The overall trend, however, is away from oral argument.

Briefing on the merits has been fairly stable at around 30%. (( In 2006, the Court requested full briefing in about 1 petition out of 3.3. In 2007, that ratio was 1 case out of 3.4. And in 2008, the ratio was also 1 out of 3.4. ))

But the likelihood of those fully briefed cases being set for argument has declined from roughly 40% in 2006 (which looks a little high by historical standards) down to roughly 25% in 2008. (( In 2006, the Court asked for oral argument once for every 2.6 cases in which it asked for briefing on the merits. In 2007, that ratio was 1 out of 3.1. And in 2008, the ratio was 1 out of 4.0.

If someone has “official” stats, I’d be more than happy to plug them in here. These stats are my own. ))

The numbers confirm that the Court is intentionally being more selective in choosing oral arguments. Some think this is so that the Court can focus on its docket statistics. (( Reasonable people can disagree about whether this is a good thing for the justice system. My view is that the “backlog” stats are overplayed in the media and frankly, misleading. )) It may instead reflect a shift in the Court’s philosophy about which cases warrant oral argument. (Of course, as with questions of legislative intent, it may be difficult to divine any single “intent” among the Justices who may be participating in this move.)

Over time, we’ll have to see what this means for the Court’s “submarine docket.” I’ve noticed an increasing number of petitions being held more than 75 days after merits briefing is complete. Presumably those cases have gone to conference and the Court has, at a minimum, decided to wait on them. Had any of these petitions been deemed by the Court to warrant argument, they could have filled out the January or February calendars.

Adding those petitions to the Court’s catalog of fully briefed petitions that have been held more than 180 days after the completion of briefing, I count from 40-50 pending cases today in which the Court seems to have chosen a path other than oral argument.

This year? Maybe even lower, but it’s too soon to tell.

The Court began the Term by announcing 25 argument days spread from September through April, grouped into two- or three-day sittings. A normal argument “day” at the Texas Supreme Court contains three arguments. With that rough math, the Court schedule began with room for 75 oral arguments.

The Court has held oral argument in 33 cases so far, spread over 12 argument days. The Court has canceled three argument days outright.

There is still plenty of time for the Court to fill out its early March, late March, and late April argument sittings. But the Court has not yet scheduled any cases to be heard.

My bet is that we’ll see a few petitions granted next Friday. The Court has a conference scheduled next week, and next Friday’s order list would leave just over 21 days before the Court’s next scheduled argument sitting on March 10th.