This post looks ahead slightly past next week’s argument sitting to see how the Court’s February argument calendar is shaping up.

The Court has set only five cases for February’s nine potential argument slots. And this Friday, January 11th, is the last regular order list remaining at least 21 days before the Court’s scheduled sitting on the 5th, 6th, and 7th of February.

What does that mean for tomorrow’s orders and for any cases that might be granted so shortly before argument?

The Court has several options:
* grant up to four cases this Friday to be heard in February,
* grant one case and then cancel the last day of the February sitting, or
* proceed with a calendar that’s less than full. ((Unlike the United States Supreme Court, which has been under pressure from the bar to decide a greater number of cases, the Texas Supreme Court has not been criticized for the number of cases it sets for argument. It’s very possible that the Court may proceed with a partial argument calendar now.))

Short-Fuse Oral Arguments

When the Court puts such a short fuse on the argument date, counsel are put in a challenging position. On a compressed schedule, it can be hard to fit in the level of serious preparation that an argument before the Texas Supreme Court deserves — in particular, arranging a moot argument before a panel that has made itself familiar with the briefs and can test your positions from a skeptical perspective. Without sufficient preparation, oral argument is rarely helpful to the client or to the Court.

The short fuse can also be problematic for potential amici — especially those who would support the Respondent. In practice, the window for filing an effective amicus brief starts to close at oral argument. If an amicus brief is filed long enough before argument to permit the Court to digest its contents, then the brief can influence the Court’s initial vote on how to dispose of the case and — as happens with some frequency — form the basis of some of the Court’s questions at oral argument. By contrast, a post-submission amicus brief is swimming upstream. Once the Court has already voted to resolve the case differently than the amicus suggests, the brief may meet a very skeptical audience (the Justice assigned to write the Court’s initial draft opinion).

This window is even shorter for Respondents. That’s because amicus briefs carry with them the implicit message that the case is an important one. An amicus brief filed in support of the Respondent before the Court grants argument can be a tricky thing; its very presence might make the Court more likely to grant the case to resolve the question rather than denying the petition. Thus, amici wishing to support the Respondent can find themselves in a time crunch very quickly. When the Court grants the case on a short fuse, such amici have only a couple of weeks in which to file an effective brief.

When the Texas Supreme Court started posting an online calendar, ((It’s possible that the Court will update its calendar after I write this post. With that in mind, here is the calendar as downloaded on 12-14-2007. Here is the link to the Court’s website version, which may well change in the coming months.)) I was excited. The calendar showed a full set of conference dates for the Court, which would give a clue to practitioners about when the Court might meet to evaluate petitions—and thus a clue about the practical deadlines for amicus briefs or other filings.

Examining the Texas Supreme Court’s practice this past fall shows the benefits—and limits—of looking to the public calendar for this purpose. Over the past few months, the Texas Supreme Court has only once requested briefing on the merits on any of the days indicated as “conference days” on the Court’s public calendar. ((The Court certainly has other things to discuss when it does meet for conference. For example, today’s order list showed a wide variety of opinions and orders—including the grant of a petition—after the public calendar showed two conference days on Monday and Tuesday.)) That one time was August 28th, right after the Court released its public calendar.Since then:

• Three times (October 16th, November 12th & 14th, and December 3rd) the Court issued the orders requesting briefing on the merits while the Court was convening to hear oral argument in other cases that it had already granted on the merits. These briefing requests were made either the day before oral argument began or during the sitting itself. It makes sense that the Court would be convening on those days to discuss the cases being argued. It is somewhat interesting if the Justices were also spending time discussing pending petitions that have not yet even reached merits briefing.
• Twice, the Court requested a batch of briefs on the merits in the days right before the calendar shows a conference (August 17th and September 18th). This may suggest that enough Justices indicated on their pre-conference vote sheets that they would request briefing that the Court simply made the request before conference as a matter of course, as it does when a single Justice requests a response to a petition for review. ((It may also suggest that the public calendar is slightly off.))
• And once, it appears that the Court had a conference sitting that was not reflected on the public calendar. There are a flurry of briefing requests on October 22nd (11 requests) and one straggler on October 24th, a time that seems unconnected to any oral argument sitting and does not appear on the public calendar as a conference session. ((There was one other set of briefing requests that appear to have been an aberration. On November 2nd, the Court requested briefing in a series of related cases—and requested that the briefs be expedited. Given that the request was for expedited briefing, the fact that this request was made outside of a normal sitting of the Court seems simply to reflect an attempt to accommodate a time-sensitive petition rather than any departure from normal practice.))

If you are trying to guess when the Court might meet to evaluate a pending petition—such as if you want to submit an amicus curiae brief supporting the filing and to ensure the Justices see it before they make their initial decision—you may need to try to beat both any upcoming argument sittings and upcoming conference dates. All of this may suggest another reason to try to time the filing of your amicus brief to be no later than the Respondent’s response to the petition.