46. The Long Conference

The annual late-September meeting of the justices usually sees a flurry of cases added to the docket—even as many veteran practitioners try to time their cert. petitions to avoid it.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

---

On the Docket

There were only two formal rulings last week to come out of the Court. The more visible of the pair was Justice Alito’s extension, Friday afternoon, of his administrative stay of the Louisiana district court injunction that purports to forbid a wide range of contacts between Biden administration officials and social media companies. Alito’s interim pause of the injunction was originally set to expire at 11:59 p.m. (ET) on Friday; it is now set to expire just before midnight this Wednesday (September 27). This is the third time this Term that Alito (who’s one of only two justices to impose time limits on his administrative stays) has had to extend one. In both of the prior examples, the Court granted the request for emergency relief—over Alito’s dissent. (The earlier two were the mifepristone cases and the ghost guns stay.)

The other ruling was the Court’s summary denial of a stay of execution and certiorari on Thursday (over no public dissents), which cleared the way for Oklahoma’s execution of Anthony Sanchez.

This week, officially the last of the October 2022 Term, is really the beginning of the Court’s work for the October 2023 Term. The “Long Conference” (about which, more below) takes place tomorrow, and we expect not only a full Order List out of it next Monday at 9:30 a.m. (ET), but also a “miscellaneous” order list (mostly adding cases to the Court’s docket for the upcoming Term) later this week. And we also expect the Court to rule not just on the emergency application in the social media contacts case flagged above, but also on Alabama’s request for emergency relief in the latest round of litigation challenging its congressional redistricting—about which I wrote last week.

It’s going to be a busy (and potentially momentous) week…

---

The One First “Long Read”: The Long Conference

As next week’s issue will cover in more detail, the Supreme Court’s annual “Term” begins on the first Monday of October—a statutory date that has been fixed since 1917. Until 1980, the Court formally recessed when it rose for its summer recess, meaning the Court lacked the power (even if it wanted to) to rule on matters over the summer. And even since the justices moved to a “continuous” Term in 1980, they’ve kept to the tradition of no summer Conferences. Thus, after the “clean-up” Conference that usually follows the last merits decisions of the Term in June, the Long Conference is the first time the justices formally reassemble in person to consider and rule on pending matters.

To deal with all of the work that had piled up during the justices’ summer recess, the norm, for decades, was that the Court would briefly gavel into session on that first Monday, dispense with any pending non-argument business, and then promptly retire to the conference room so that the justices could start working through the backlog (which would take several days). Oral arguments usually wouldn’t begin until the second week of the Term.

Apparently, Justice Blackmun had a better idea. As Chief Justice Rehnquist recounted in his 1987 book, The Supreme Court: How It Was, How It is,

shortly after I arrived [at the Court in 1972], Justice Blackmun pointed out that if the Court were to move the summer certiorari conference, which generally lasts several days, back to the last week of September, it could then begin oral arguments a week earlier and allow an added week in the December recess where the time could be profitably used for working on opinions which by that time would already have been assigned. This suggestion was instantly approved by his colleagues, and we have done business that way ever since.

Thus was born the current iteration of the “Long Conference,” in which the justices meet the last week of September (usually on Monday)¹ so that the decks are fully cleared come the first Monday in October. This timing shift doesn’t just free up an extra week in December (one the Court hardly needs anymore given the sharp decline in the number of argued cases); it also means that the Court’s Term opens with one of its most consequential (and certainly largest) set of orders in any given year. For instance, it was the denial of seven cert. petitions on the first Monday of the Court’s October 2014 Term that appeared to signal the justices’ willingness to let lower federal courts legalize same-sex marriage. (Only later would the Sixth Circuit force the Court to take up the issue on the merits by upholding same-sex marriage bans in the case that became Obergefell.)

The Long Conference doesn’t just tend to produce a number of consequential denials of certiorari; it has also been the source, especially in recent years, of the most grants of certiorari of any single meeting of the justices all year. Last year, for example, the Court added nine cases to its argument calendar directly out of the Long Conference. Nine wasn’t an outlier; it also added nine as recently as 2017. And in yet another sign of how empty the Court’s docket has become, the Court has also in recent years not even waited until the First Monday to announce those grants; that’s why we expect at least some orders out of the Long Conference later this week. (By granting certiorari this week rather than next, the Court can have these new cases briefed on a regular schedule and still have them argued in January, rather than either expediting them or pushing them to the February argument session, which a grant next Monday would necessitate.)

Given that the justices consider more cert. petitions at the Long Conference than at any other meeting, it’s not surprising that there are also more grants. But what might be surprising is the extent to which veteran practitioners will try to avoid the Long Conference—timing cert. petitions, where possible, so that they’ll be considered either before the justices rise for their summer recess or at some point after the new Term begins. As former Solicitor General Greg Garre said in 2015, “The summer list is where petitions go to die.”

This practice reflects the fact that the overall percentage of petitions granted at the Long Conference is significantly lower than at other Conferences. As for why that is true, it might reflect the results of a 2015 study, published in the Law and Society Review, that attributes some of that to clerkship timing. Early in clerkships, the authors found, clerks are 36% less likely to recommend a grant of certiorari when than later in their clerkship. And because the Long Conference is the first time when the Court considers petitions after the clerks turn over (usually in July), the lower grant rate reflects at least some of that reticence. (Of course, the more that the norm among veteran practitioners is to try to avoid the Long Conference, the more that otherwise worthy petitions might be kept out of the pool, so that it becomes a self-sustaining phenomenon.)

Whatever the reason, this is the seeming paradox of the Long Conference: Petitions have the longest odds of being granted, but more petitions are granted than at any other Conference the entire year. If nothing else, it’s another powerful example of how internal practices, norms, and behaviors (none of which are memorialized anywhere) can have such a profound affect on the nature of the Supreme Court’s work.

---

SCOTUS Trivia: The (Almost) First Jewish Justice

Yom Kippur had me thinking about writing a whole post about the history of the Court’s “Jewish” seat, which was arguably a thing from 1932–69 (when the same seat was held, in progression, by Justices Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, and Abe Fortas). Cardozo was not the first Jewish justice, or course; that was Louis Brandeis, who was nominated and confirmed in 1916.

But the trivia involves the person who almost beat Brandeis to that superlative by 63 years: Judah P. Benjamin. A successful New Orleans-based lawyer (who owned a plantation and at least 140 enslaved people), Benjamin was the first practicing Jew elected to the U.S. Senate (in 1852 for a term beginning in 1853). When outgoing President Millard Fillmore’s first three nominations to replace the late Justice John McKinley failed, Fillmore approached Benjamin about the nomination, which was apparently sure to succeed in the Senate. (Fillmore’s successor, President Franklin Pierce, also offered the seat to Benjamin.) But Benjamin turned both presidents down, at least largely because he preferred being able to be active in politics in the Senate while maintaining his lucrative legal practice. (The seat ended up going to Pierce’s second choice, John Campbell.)

Benjamin resigned from the Senate in February 1861 to join the Confederacy, and was appointed as the CSA’s first Attorney General three weeks later. He’d hold two other Confederate cabinet posts during the war (including the last three years as Secretary of State), before fleeing to England, where he spent the rest of his career (and life) as a highly accomplished and well-regarded barrister. If the Confederate Congress had ever gotten around to creating a Supreme Court (more on that in a future issue), Benjamin would surely have been at the top of the list for its chief justiceship.

---

I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!:

If you’re not already a paid subscriber and are interested in receiving regular bonus content (or, at the very least, in supporting the work that goes into this newsletter), please consider becoming one! This week’s bonus issue for paid subscribers will drop on Thursday. And we’ll be back with our regular content for everyone next Monday!

Happy Monday, everyone. I hope that you have a great week—and, for those who are observing Yom Kippur, an easy fast.

1. This year, the Long Conference is on Tuesday almost certainly because of Yom Kippur (which ends at sundown tonight). Last year, the Long Conference was on Wednesday—presumably to avoid conflicting with Rosh Hashanah. But the norm appears to be to hold it on Mondays when that date doesn’t pose a conflict.