First, Mark Smith is a lawyer. I am not. Much of the “inside baseball” I’ve learned from listening to Mark and others like him on YouTube.
His analysis of many cases is spot on. Many times his analysis guides mine. I enjoy listening to him. To put it differently, I enjoy him attempting to “make [me] the smartest person in the room.”
One of his early videos was describing how the Roberts court handles grants of cert.
As he explains it, once a case gets to the point where it will be considered for cert, it will be distributed for conference. This means that it will be discussed by the Justices at a particular conference. Those conferences normally happen on Friday.
The court will then issue their “Orders” on the following Monday. Well, that is the day it is normally published.
The orders list consists of mostly of one or two lines, case such and such petition for something is denied. There are long lists of denied, a shorter list of granted.
In addition to the short statements from the Court as a whole, there will sometimes be statements by the Justices regarding denial of cert in a case. These can be considered dissenting opinions.
If a case has been conferenced, there are three options for the case going forward. The case can be denied cert. The case can be granted cert. The case can be relisted.
If a case is relisted. Which means to be distributed for conference the next week. That will not be in the orders. It will show up in the case docket later in the day.
If a case is not listed in the orders, after it has been conferenced, it can mean one of two things (IANAL), it can mean that the case is relisted, and we’ll read it in the docket later in the day, OR it means that cert was granted but one or more Justices needs time to write a statement.
As I said, the orders are normally given on the Monday following the conference.
Occasionally, there will be a misc. orders issued on the Friday of the conference. These are grants of cert.
Why is this important in tea-leaf reading?
The Supreme Court has a term that runs from the first of October to the end of June the next year.
In general, the Court will issue opinions in the same term as they hear oral arguments on the case.
Oral arguments must take place before the close of the term, while leaving the Justices enough time to write their opinion. Consider that the Heller opinion was nearly 157 pages in length, 60 lines per page, 10 words per line.
That makes the Heller opinion around 90,000 words in length. It was written by multiple justices, but still, that is two Novels.
It is 90 long Chris articles. Ally, our writer, will write 3700 words a day when creating the first draft. She will spend a month writing a 50,000 plus word book. Then she starts editing.
This means that if they expect it to be a long opinion, they need to have 45 or more days to write it. That 45 is an S.W.A.G by me.
This puts a fairly hard deadline for oral arguments.
From the time a case is granted certiorari, the clock is running. The petitioners have 45 days to file their brief. The respondents have 30 days to file their brief. The Petitioners have 15 days to file their reply. A total of 90 days.
To give the justices 45 days to ponder and write, oral arguments must happen on or before May 16, 2025.
Putting a more concrete number on this, it took 118 days from oral arguments in McDonald to the date the Court issued their opinion.
This implies my guess of 45 days might be a bit short. Bruen was heard in November and the opinion was issued on June 23rd.
Regardless, if we are going to have an opinion this term, we are running out of time. To hit the May 16th deadline, the Court must grant cert before February 15th.
120 days was this last Thursday, January 16th.
Wolf?
Mark explained to us that we wanted three cases conferenced on the 10th of January. This happened. Good for Mark.
He explained that we would like to see cert granted January 13th, but we should expect the cases to be relisted.
He posted a video on the 10th or 11th telling us that a miscellaneous order had granted cert in three cases on the 10th. This was bad news for the Second Amendment. These cases were being given a jump start on getting things done before it was too late for this term.
On Monday afternoon, two cases were relisted. The case that was in an interlocutory state was denied cert. There was another Second Amendment case that dealing with taxes on firearms that was also denied cert.
This was precisely what Mark had predicted.
On the 17th, our two Second Amendment cases were conferenced for the second time. In the evening, a miscellaneous order granting cert in four cases was issued.
Mark posted another video telling us this was bad news for our Second Amendment cases.
I’m sticking with Mark V1. So far, the situation is progressing as he predicted. This matches my predictions (IANAL).
I refuse to panic or even worry over the weekend. Monday morning, I will read the orders. I expect to see nothing regarding Snope and Ocean State Tactical. Later in the evening, I will check the docket for those two cases, and I expect to find them relisted.
This is on track. We are doing well.
January 27th is the day we need to be paying attention to. That will be the day orders are issued for the conference held on the 24th. If the cases are relisted for a fourth time, I’ll be nervous.
Just remember, it isn’t over until the fat lady sings.
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