SCOTUS Still Hasn’t Scheduled Some Of Its Biggest Cases

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court has yet to schedule oral arguments for three of the most high profile cases it will hear this term.

The Court released its December schedule Friday, again declining to schedule oral arguments in Trinity Lutheran Church v. Pauley, Murr v. Wisconsin, and Microsoft Corporation v. Baker, all cases on which the justices may split along ideological lines.

Trinity Lutheran is a free exercise and equal protection clause case, while Microsoft gives the justices the unenviable tasks of sorting out key class action and jurisdictional questions. Murr is perhaps the most significant takings clause case since Kelo v. City of New London.

During the December sitting, the Court will hear eight hours of oral argument over six days. The justices themselves do not set their argument schedule, though it is possible (indeed, likely) that they have asked the Court’s administrative personnel to delay certain cases for the time being. Their decision not to schedule these cases is especially surprising since all were granted in January and have been fully briefed for several months. It is highly unusual that a hearing would be delayed so long after the parties have finished filing their cases.

Though some may find the Court’s continued hesitation to take up controversial matters without a full panel troubling, some scholars find virtue in its a narrow, fairly benign docket. A number of law professors have endorsed reducing the size of the Court from nine justices to a smaller figure. Though there is division as to the court’s ideal composition, all feel a smaller Supreme Court would reduce judicial adventurism and promote restraint. (RELATED: Law Professors: Smaller SCOTUS Is Probably Better For Everyone)

There is a second explanation for the delay — it’s possible the Court could dismiss one or all of the cases if the late Justice Antonin Scalia provided the fourth vote to hear the case. When deciding which cases to accept, the justices follow the so-called Rule of Four — if four justices vote in favor of hearing the case, they accept the petition. If Scalia provided the fourth vote in any or all of the cases, it is possible the Court would dismiss the cases.

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