In this last part of our Supreme Court preview, the topic shifts from the cases that will definitely be heard this year to the cases in the pipeline.  The U.S. Supreme Court receives around 5,000 petitions for review every year, but they only grant review in approximately 60 cases per year.  Now, some of those 5,000 petitions are clearly frivolous and have zero chance of being granted.  But, even eliminating the clearly delusional petitions, that translates into something like one petition out of seventy petitions being accepted for review.  So any discussion of what cases might get full review is very, very speculative.

Now, we know that some cases will technically be heard.  There is a very limited category of cases that have direct appeals to the U.S.  Supreme Court.  But that does not mean that the Supreme Court grants full merits briefing and argument in all of those cases.  Instead, the U.S. Supreme Court often simply issues a short opinion or order affirming the trial court decision based on the initial pleadings of the parties.  For example, we know that Alabama wants the Supreme Court to take another look at their redistricting case now that the three-judge panel has held that their second attempt at redistricting failed to remedy the previous violation.  The easy decision of the U.S. Supreme Court is to reject this effort, but they might choose to wade back into this area.

So what seems likely?  The first thing that is almost certainly the case is that the U.S. Supreme Court will take a good chunk of cases from the Fifth Circuit and the Ninth Circuit.  There are two reasons for this.  First, these circuits are just big.  The Ninth Circuit is both big geographically and in population (including the states of Arizona, California, Oregon, and Washington).  The Fifth is not as big geographically but it does include Texas.  Second, both courts are somewhat politically lopsided which has made them the “go to” circuits for people who are shopping for a friendly court for an ideological case.  So the Fifth Circuit is likely to issue opinions which are too conservative even for this bunch of justices, and the Ninth Circuit is likely to issue opinions which are too liberal for this Supreme Court. Continue Reading...