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Sunday, February 22, 2009

Are SCOTUSblog's "Petitions to Watch" lists prejudicial?

SCOTUSblog, "Supreme Court of the United States Blog" in full, is a very popular law blog. Despite the name, it is not an official blog of the US Supreme Court.

SCOTUSblog has a regular column called "Petitions to Watch" -- examples are here and here. This column typically has the following heading:

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on [date]. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.

The reason for my interest in these "Petitions to Watch" lists is that I am concerned about the effect that listing or not listing will have on Caldwell v. Caldwell's chances of being granted certiorari. I am particularly concerned that these lists probably influence the Supreme Court's decisions on whether to grant certiorari. SCOTUSblog's recap of "Petition's to watch" in OT06 (October term 2006) says,
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The Court granted only 56 cases in the 12 months between July of 2006 and June of 2007 . . . . While we don’t yet have an exact count of how many paid cases were considered over the past 12 months, it looks to be roughly 1600-1700 cases; that means that somewhere in the neighborhood of 3% of the paid cases the Court considered were granted. Tom flagged 47 of those, or about 84%, as potential grants. (Two didn’t make it onto the published lists as a result of logistical snafus.) Nineteen paid cases were CVSG’d ["call for the views of the Solicitor General"] in the same time span; we had 15 on the list, for 79%.

An additional 14 pauper cases were granted this Term . . . .

. . . .Ultimately, we featured 223 petitions – about 13% of the paid cases. As noted, 47 were granted, for a grant rate of 21%, while another 15 (7%) were sent to the SG [Solicitor General]. 16 additional cases were held, GVR’d ["granted, vacated, and remanded"], settled, withdrawn, or not denied for any reason – another 7%. Finally, 143 of our 223 cases were eventually denied (64%).

A comment on the above article said,

By my reckoning, depending on just how many paid petitions the Court disposed of in OT06, the chance in that term of a given paid petition you didn’t flag being granted was between 0.6% and 0.65% (i.e., 1600-1700 petitions minus 223 you flagged = 1377-1477 you didn’t flag, of which 9 were granted = 0.6-0.65%).

SCOTUSblog very carelessly threw around esoteric acronyms without first defining them.

A "paid" case is a case for which the $300 filing fee was paid.

"GVR" must mean that the petition is granted and the case is vacated and remanded in a summary judgment without merits briefs, oral hearings, or a formal written opinion. Strictly speaking, these GVR's are not really grants of certiorari because "writ of certiorari" is formally defined as a request for the records of a lower court, meaning that the Supreme Court intends a full formal review. The term "petition for certiorari" is really a misnomer because the Supreme Court could grant a GVR instead -- a better name for these petitions would be "petition for reversal." Anyway, a GVR should be regarded as a successful outcome of a petition, though not as successful as a grant of certiorari and a favorable opinion. This list of the OT06 petitions flagged by SCOTUSblog's "Petitions to Watch" shows that 8 of these petitions were GVR'ed (one of the petition statuses is called "summary judgment" instead of "GVR", adding to the confusion). SCOTUSblog did not state how many, if any, of the unflagged cases were GVR'ed, but the number is probably very small at most. As for a CVSG, this is not a final rejection and 19 petitions were CVSG'ed in OT06 -- it would be nice to know how many of these petitions were eventually granted.

The success rates of the "Petitions to Watch" lists in predicting the Supreme Court's decisions seem too good. Getting a grant of a petition for certiorari in the Supreme Court is a crapshoot for most petitions and I don't see how predictions can be this good unless these lists have a strong influence on the Supreme Court's decisions. The lists' success in predicting denials of the petitions is much fishier than the lists' success in predicting grants of the petitions -- of 1377-1477 cases that SCOTUSblog did not flag, only 9 were granted certiorari and perhaps a very small number were GVR'ed. It seems that not making it onto these "Petitions to Watch" lists is almost a kiss of death for a petition. I suspect that the Supreme Court is using these lists as a pre-screening device. I wonder if SCOTUSblogs gets complaints about particular petitions not being listed. IMO the lists are prejudicial and should be discontinued.
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