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Supreme Court Returning To Normal In Post-Election World

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Kevin Daley Supreme Court correspondent
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The work of the Supreme Court seems to be returning to a regular pace in the aftermath of the general election, according to an analysis of court filings.

Uncertainty plagued the Court’s work in the aftermath of Justice Antonin Scalia’s death in February. The number of cases the justices decided to hear fell precipitously (they’re sitting for only seven oral arguments in December), while lawyers were left scrambling to accommodate new realities.

However a survey of Court activity indicates business may be beginning to return to normal with the prospect of a new justice joining the bench in the coming months.

Adam Feldman’s analysis at Empirical SCOTUS shows the pace of work at the Court appears to be returning to its historical mean.

As Feldman explains, since Nov. 8’s election, Court clerks have 463 new petitions from various parties asking the Supreme Court to take up their case. Seventy-seven were written pro-se (primarily incarcerated criminal defendants), and 28 came from the Federal Public Defenders office.

Since filings of this nature tend to remain steady throughout the year, it may be useful to subtract them from the overall figure. Still, at 358 filings, the pace of cert petition filings is healthy. (RELATED: Supreme Court Sides With Samsung In iPhone Dispute With Apple)

What’s more, his analysis shows that post-election filings from the Supreme Court bar, the cohort of well-credentialed lawyers who possess a virtual monopoly on advocacy before the Court, are fairly robust. Paul Clement of Kirkland & Ellis, who argued two cases back to back at the high court this week, and Sidley Austin’s Jeffrey Green have had two filings in the post election period. Mayer Brown’s Charles Rothfeld and the Solicitor General’s office (among others) have each had three filings.

Finally, a whopping 48 amicus (or “friend of the Court”) briefs have been filed in recent weeks, which indicates continued interest in the Supreme Court’s docket. Though the Court’s cases will always solicit interest from outside parties, one might expect to see a decline in amicus briefing during a period of stagnation in the Court’s business.

Separate from filings, the Court also agreed to hear seven cases last week. In recent months, the justices have taken up cases at a fairly slow pace, but the grants could indicate the Court expects to return to a regular clip in the coming months, though it’s not clear that a ninth justice will join the bench before the term is out in June.

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