ADF Alliance Alert

The Supreme Court granted cert. today in 17 cases, but none of them involve “culture war” issues, such as religious liberty, the Establishment Clause, etc. Those cases were set for the conference on Monday and reputable Supreme Court observers, like SCOTUSblog, identified a number of those cases as “petitions to watch”.

ADF had two of those cases before the Court. They both involved religious liberty and freedom of speech — Faith Center Evangelistic Ministries v. Glover (whether county library may single out worship services for exclusion from its meeting rooms generally opened to all) and Gilles v. Blanchard (whether a public university can deny a street preacher access to its main mall) The Supreme Court did not deny review in those cases (only two cert. denied orders were on today’s list). That means that the numerous “culture war” cases are lingering and not denied as of now.

How is it that the Supreme Court took none of these cases (as of yet)? There may be a reasonable explanation for this. ADF’s good friend and astute Supreme Court observer, Walter Weber, speculates that the results may have resulted from pressure to fill the woefully-low oral argument calendar quickly. This is indicated by the fact that theCourt looked at 3 months’ worth of cert. petitions in one day or less. In the past, this “long conference” has taken a week, not one day. Before this list came out today, the justices had no cases in the pipeline for the January sitting. Because the normal briefing schedule taking about 3 months, the Court had to grant review in some cases fast in order to have the briefing done before oral arguments in January.

Therefore, Walter conjectures, the justices came in Monday to grant review in cases where there was a clear consensus that the justices wanted to hear them. (It takes four votes to grant review of a case at the Supreme Court). Some of the cases granted cert. today have expedited briefing schedules, to hurry them to completion for oral arguments in January.

If a case had a few justices wanting to hear it, but not four, the high court may have decided to hold those cases over for further deliberation. If the justices had decided to worked through their difficulties on those cases, their conference would have lasted all week and not just a few hours on Monday. That would have delayed the “cert. grants” for a week. That would have put more time pressure on the lawyers in the other cases that were definite cert. grants — the ones needed to fill the January calendar. Rather than make them wait, the Supreme Court may have decided to divide the cases into the consensus grants, announce those today, and then put off until later the “possible, but not yet” cert. petitions and work through the issues in them later.

We will have further evidence whether this theory is correct or not on Monday, when the Supreme Court issues its “cert. denied” (It is unlikely that there will be further cert. grants on the list coming out October 1 – it should only be cert. denials). If most or all of the “culture war” cases are cert. denied, then we will know this theory is missing the target. But if most of these cases are not mentioned on the October 1 cert. denied list, then it means the justices are considering these cases and want more time to deliberate on them. Stay tuned.