182. Closing the Book on OT2024

As the October 2025 Term officially begins, it's worth taking a moment to highlight the record-setting—and revealing—final statistics for how the justices handled emergency applications during OT2024.

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Even relatively casual Court-watchers know the significance of the First Monday in October: Today marks the formal (statutory) beginning of the Supreme Court’s new term—officially, the “October 2025 Term,” or “OT2025.” I’ve written before about both the history of “First Monday” and why, especially given the pace of emergency docket rulings across recent summers, it makes increasingly little sense to “close the book” on the previous term when the justices rise for the summer recess in June—as opposed to today. Rather than rehash those analyses, I thought I’d just make good on that second point about when the previous term really “ends”—and use the occasion of the official end of OT2024 to report and analyze the final statistics for how the Court handled emergency applications over the last 364 days.

In a nutshell, the numbers are eye-opening. There were 140 rulings by the full Court on emergency applications (compared to a total of 55 signed opinions in cases argued on the merits docket).¹ The Court granted emergency relief 31 times. And 46 of those 140 rulings included at least one public dissent, including 19 orders from which all three Democratic appointees dissented (16 in which they were the only public dissenters); and seven that split the Court 5-4. Obviously, Trump cases were responsible for much of this data—but not for all of it.

In today’s “Long Read,” I’ll go into more detail about just how unprecedented these numbers truly are. But the topline is and ought to be wholly undeniable: both quantitatively and qualitatively, the [whatever-the-heck-we’re-calling-it] docket is crowding out the merits docket as a source of the Court’s work—and is increasingly the most important thing the justices are dealing with on a daily basis. Whatever one thinks of the results the Court is reaching in these cases, that is a stunning transformation in the business of the Supreme Court—and not, in my view, either a healthy or a sustainable one.

But first, the news from a very busy last week of OT2024.

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On the Docket

I’m going to try something new—breaking the “On the Docket” section into subcategories for (1) the merits docket; (2) the emergency docket; (3) the week ahead; and (4) “miscellaneous.”

The Merits Docket

Last week brought two sets of orders out of the justices’ “Long Conference” (which took place last Monday): housekeeping orders on Tuesday for cases already set for argument; and five new grants of certiorari (adding cases to the OT2025 merits docket) on Friday—the biggest of which is, almost certainly, a Second Amendment case out of Hawaii. Five grants may seem like a lot for a single set of orders, but it’s actually remarkably low for the Long Conference (last year, for comparison, the Court added 13 total cases to its docket after the Long Conference). It’s possible that more grants from the Long Conference are coming (either later today or later this week), but it’s also possible that the justices are indulging the possibility that they’ll need to save some room on the OT2025 merits docket for late-breaking (Trump-related) cases.

The Emergency Docket

The Court once again made a bunch of headlines on emergency applications—with one significant ruling per day from Tuesday to Friday, beginning with Tuesday’s denial of a stay of execution (over no public dissents) to Florida death-row inmate Victor Jones, who was executed later that afternoon.

Wednesday’s headline was the Court’s punt on the Trump administration’s application in the Lisa Cook case—deferring for a January 2026 argument the question of whether Cook can continue to serve on the Federal Reserve Board while she challenges President Trump’s (transparently pretextual) attempt to fire her “for cause.” Because Chief Justice Roberts declined to issue an “administrative” stay, Cook will remain on the Board at least until the Court rules on the application—so Wednesday’s ruling is a short-term victory for her. But this will be the fifth time the Court has held oral argument on an application since 2022 (and since 1971); in each of the previous four cases, the Court eventually sided with the applicant (most recently in the birthright citizenship cases earlier this year). We’ll see if that pattern holds, here.²

On Thursday, Justice Alito entered an administrative stay in an international custody dispute—in which the father of a Venezuelan asylum applicant (who is currently living in Houston with her mother) is seeking the child’s return to Venezuela (even though he currently resides in Spain). The district court had rejected the father’s request, but a divided panel of the Fifth Circuit granted it—and then refused to stay its mandate pending an appeal, opening the door to the possibility that the child (and her mother) would be removed to Venezuela while their appeal is pending. Justice Alito has now temporarily paused things while the full Court considers whether to issue a stay pending appeal—and has ordered the father to respond by 4 p.m. (ET) on Thursday, October 16.³

And speaking of Venezuela, on Friday, the full Court granted the Trump administration’s new application in the back-and-forth dispute over Secretary Noem’s efforts to “revoke” Temporary Protected Status for Venezuelan migrants in the United States. (More on the first round of litigation here.) Although the district court and the Ninth Circuit had both concluded that circumstances had changed since the Supreme Court stayed an earlier ruling on the same issue back in May, a majority of the Court (apparently) disagreed.

Friday’s order was, as usual, light on analysis; it provided only that “Although the posture of the case has changed, the parties’ legal arguments and relative harms generally have not. The same result that we reached in May is appropriate here.” Alas, the Court’s May order didn’t actually analyze those “legal arguments and relative harms” (there was no explanation whatsoever). But this is where we are with precedent on the emergency docket.

The three Democratic appointees all dissented from the ruling in Noem v. National TPS Alliance. Justice Jackson’s dissenting opinion is especially sharp in its critique of the majority—noting that “We once again use our equitable power (but not our opinion-writing capacity) to allow this Administration to disrupt as many lives as possible, as quickly as possible.” Justice Jackson has come in for a lot of (to my mind, unfair) criticism from the Court’s defenders for her rhetoric in these cases; as I’m planning to explain in a future issue, the substance of the charge here (and in virtually all of her dissents in these cases) continues to be spot-on. Even if you accept the (debatable) proposition that the executive branch suffers irreparable harm when any of its initiatives are blocked (even actions that are seemingly in defiance of the relevant statutes), the notion that it suffers more harm than tens (if not hundreds) of thousands of Venezuelan migrants who are now subject to the specter of immediate arrest, detention, and removal from the country is just not persuasive.

The Week Ahead

Turning to this week, we should receive the full Order List out of the Long Conference at 9:30 ET this morning. This is usually the biggest and most significant overall set of orders the Court hands down all year—including hundreds of denials of certiorari; a handful of summary dispositions in pending cases; and a bunch of separate opinions respecting those first two categories. If any of them are especially newsworthy, I’ll try to flag them on Bluesky.

At 10:00 (ET), the justices will take the bench for the first time since June—and Chief Justice Roberts will formally open the October 2025 Term. Then, we’ll have the first arguments of the term—starting with a criminal procedure case on direct appeal from Texas state courts (the Court went the entire October 2024 Term without hearing a single direct appeal in a state criminal case). The Court has six arguments scheduled in all this week—the headline of which is almost certainly Tuesday’s argument in Chiles v. Salazar, on whether Colorado’s ban on “conversion therapy” violates the First Amendment.

As busy as the Court will be on the merits docket, the emergency docket isn’t showing any signs of slowing down even as the Court’s “regular” workload is ramping up. Besides the now-deferred application in Cook, the justices still have one application pending from the Trump administration (about whether to put back into effect a State Department policy requiring new U.S. passports to reflect the biological sex at birth of their holders). In non-Trump applications of note, we have:

1. The Google application I flagged last week, in which a response was filed on Friday;

2. The Alabama death penalty application I flagged last week, in which Justice Thomas has already issued an administrative stay and in which a response was filed on Friday;

3. The custody dispute application I noted above (in which Justice Alito has already issued an administrative stay); and

4. A new application on behalf of Mississippi death-row inmate Charles Ray Crawford (represented by former Solicitor General Don Verrilli), who is scheduled to be executed next Wednesday.

Suffice it to say, OT2025 is going to start much the way OT2024 ended—with the Court just as busy (if not busier) with emergency applications as it is with its “regular” workload.

Miscellaneous

Finally, I thought I’d flag two potentially useful media resources and two upcoming events. On the resources front, my friends at CNN have produced a (to my mind, very helpful) video explainer on how the Court handles emergency applications (and how it differs from the merits docket). You can watch that here. And I was a guest on the National Constitution Center’s “We the People” podcast this week, looking ahead to the upcoming term. You can listen to that here, or wherever you get your favorite podcasts.

And speaking of SCOTUS and events, I’ll be at the University of Chicago’s Institute of Politics tomorrow night speaking about the Court as part of a panel on “D.C. Drama.” And Wednesday at lunchtime, I’ll be joining the Nashville Lawyers Chapter of the American Constitution Society for their annual Supreme Court preview (details here).

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The One First “Long Read”:
Math-ing the OT2024 Emergency Docket

I’ve written before about the challenges of trying to use even rudimentary statistical methods to “measure” the work of the Supreme Court. And those challenges persist. But I still believe that there is value in at least trying to flag some of the more striking numerical trends in the Court’s behavior—as part of my broader project to push all of us to view the Court as more than just the sum of its individual decisions.

To me, the right time to track those trends is now—at the formal turn of the term year, rather than when the justices rise for their summer recess (which is, somewhat inexplicably, the Court’s chosen turnover point). As noted above, the full Court across OT2024 handed down 140 rulings on emergency applications (I’m not counting single-justice, “in-chambers” rulings). To put this number into context, the only other term I’ve ever found with more than 100 such rulings was OT2023 (last term), when there were 122. As recently as OT2022, the full Court handed down 76 rulings on applications; there were 72 in OT2021; 66 in OT2020; and 72 in OT2019. In other words, the full Court decided approximately twice as many applications during OT2024 as had been the norm as recently as 2-6 years ago. (It’s telling that the denominator jumped to 122 during OT2023—i.e., before the recent flurry of Trump-related applications.)

And the numerator has shot up, as well. There were 31 grants of emergency relief by the justices during OT2024, compared to 15 during OT2023. In other words, whereas the “grant rate” during OT2023 was 15/122 = 12.3%, during OT2024, it was 22.1%. (For OT2022, it was 8/76 = 10.5%.) Only OT2020 (Justice Barrett’s first term, and a term full of COVID-related cases), when the Court granted emergency relief 24 times, comes anywhere close to the volume of interventions by the Court during OT2024—and it’s still a pretty big gap. (23 of the 31 grants have come on applications from the Trump administration; two more have come in applications against the Trump administration; so only six of the grants were not in any way Trump-related.)

But what has always been the most telling statistic to me is how the justices are dividing in these cases. In all, at least one justice publicly dissented from 46 of the Court’s 140 orders in these cases; at least one justice publicly dissented from 29 of the 31 grants of emergency relief; the three Democratic appointees all dissented from 16 of the orders; and seven of the full Court’s rulings on orders divided the justices 5-4.

Nor did any of the dissents produce “strange bedfellows.” The only two times that a justice from the Thomas/Alito/Gorsuch bloc and a Democratic appointee both dissented, it was in opposite directions in cases in which the majority voted to grant partial relief. (In other words, some justices dissented from not granting relief in full; some dissented from not denying relief in full.) At least based upon public votes, the justices are thus splitting ideologically in every single emergency application in which they are publicly dividing at all. That’s a far cry from the merits docket.

And although it’s common in discussing the Court to refer to the “middle” bloc of Chief Justice Roberts and Justices Kavanaugh and Barrett, at least based upon public votes on emergency applications, that bloc really has only two members. In full Court orders with at least three public dissents (so, where the Court is really divided), here’s how often each of the three voted with the three Democratic appointees—whether in the majority or the dissent:

• Roberts: 7

• Barrett: 7

• Kavanaugh: 2

And in 5-4 cases, it was 4-4-0. Sometimes, the data really can be telling.⁴

Finally, one stray thought about volume: It seems to me that a reasonable measure of the resources these cases are consuming is to focus on the full Court rulings that either (1) grant relief; or (2) include a public dissent (obviously, some have both). This might be somewhat underinclusive; for instance, I don’t doubt that there were significant behind-the-scenes machinations leading up to the deferral in Cook. But those are impossible to count. Focusing on grants + denials-with-dissents, that total, for OT2024, is 48 total rulings (31 grants; 17 denials over public dissents).⁵ Putting that number alongside the total number of signed opinions in argued cases on the merits docket (55) is perhaps the most striking statistic of all: The total output of the Court’s contentious work on emergency applications is coming increasingly close to matching its total output on the merits docket.

That would be striking enough in the abstract. But when we consider the real-world implications of virtually all of the Court’s interventions on emergency interventions during OT2024, versus, candidly, the lesser implications of at least some of the Court’s work on the merits docket (except for lawyers, anyway), it really does hit home just how much the emergency docket has become the dominant source of the Court’s most important—and most revealing—work. Indeed, if we look only at the non-unanimous rulings on the merits docket from OT2024, we find the exact same total number—31—as the number of grants of emergency relief. That they’re identical is a coincidence. That they’re close to each other is wild—and telling.

For reasons I’ve articulated before, I don’t think that these developments are good for the Court in the long term regardless of the bottom lines in these cases. Nor do I think it’s sustainable without significant shifts to the Court’s internal operations (one small hint of this is the unusual reference to supplemental briefs in the Cook order; that was necessary because there’s nothing in the Court’s rules that deals with briefing before an argument on an application).

This last point matters because there is absolutely no reason to believe that this trend is going to abate in any meaningful way during the term that started this morning at midnight. 52 weeks from now, the statistics respecting full Court rulings on emergency applications across OT2025 could look a lot like the statistics for OT2024—if not even more extreme. That would be, in my view, deeply unfortunate—not just for the Court, but for the country.

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SCOTUS Trivia:
When the “First Monday” Wasn’t the First Monday

104 weeks ago today, for First Monday 2023, I wrote a longer history of the evolution of the day(s) on which the Supreme Court’s annual sessions began. Today’s trivia, for those who’d rather not read that post in full, is about the last year on which the Supreme Court’s term began on a day other than the First Monday in October.

The answer, as it turns out, was 1916—when the Court’s term began, for the last time, on the second Monday in October, i.e., October 9. (The term had opened on the second Monday dating back to 1873.) A statute Congress enacted in September 1916 had moved the Court’s calendar up one full week—but it didn’t go into effect until the beginning of the October 1917 Term, the first “First Monday.” Today is the 109th.

Indeed, we take for granted that the Court’s term starts on the First Monday in October. But it turns out, like so much else about the Court and its work, that’s entirely up to Congress—and it’s something Congress used to tweak, whether to accommodate the justices (as was true in 1916), or to mess with them (as was true in 1802—when Congress used its power over the Court’s schedule to prevent the justices from sitting at all between December 1801 and February 1803).

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1. 56 if we count the unsigned but full-length majority opinion in TikTok.

2. By January, the justices will also know whether (and, if so, how) they’re answering the second question they’ve posed in the Trump v. Slaughter case (which will be argued in December)—about whether federal courts have the power to order reinstatement of federal officers who are wrongly removed. That answer could, quite obviously, also matter quite a lot in the Cook case.

3. Curiously, Thursday’s order does not (yet) appear under “Orders of the Court” on the Supreme Court’s webpage. It’s not clear if this was just an (unusual) oversight on the Court’s part, or if the Court is no longer posting single-justice grants of administrative stays to that particular page (as it had been doing consistently—including as recently as … September 26).

4. If anything, this gap is more pronounced than it looks; the only two cases in which Kavanaugh ticks the box here were cases in which Justices Thomas, Alito, and Gorsuch publicly dissented—that is, where the Court was split 6-3 against its right-wing. Justice Kavanaugh may well be the sixth vote for relief in that context; there are no apparent examples in which he was the fifth.

5. Another way to count this category is to start with the 46 orders with public dissents and then add the grants with no public dissents—of which there were two.