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Charles Rothfeld of Mayer, Brown, Rowe & Maw arrived at his D.C. office early on Tuesday of last week, eager to learn whether the Supreme Court would grant review in a key commerce clause case he had brought before the Court. He expected to find out at 10 a.m., the hour when the Court had announced it would make public the list of cases granted review at the justices’ private “long conference” on Monday, at which they sifted through petitions that had piled up over the summer. But when Rothfeld turned on his computer, he found an early morning e-mail alerting him that his case DaimlerChrysler Corporation v. Cuno had in fact been granted. Rothfeld wasn’t the beneficiary of a forbidden leak from inside the Supreme Court. Instead, in a rare case of human error, the Court had inadvertently posted the orders list on its Web site hours earlier than the announced time of 10 a.m. “Someone in my office found it early,” said Rothfeld, who was glad to learn about the grant earlier than expected. It was a minor Supreme Court lapse that did not appear to move markets, and it was not as serious as if the Court had actually released an opinion before its time, a highly forbidden act. But at an institution where traditions reign supreme, it was a notable deviation. Under past chief justices — Warren Burger, in particular — the transgression might have been enough to cause heads to roll. But the Court seemed to shrug it off, and it was hard to imagine the more easygoing Justice John Paul Stevens, who is running the Court in the absence of a chief justice, getting very upset about it. The glitch had a ripple effect in the Supreme Court community and among the media. Stories began emerging early about the cases granted — ranging from Rothfeld’s case on the constitutionality of state investment tax credits to the case of one-time Playboy bunny Anna Nicole Smith — and Goldstein & Howe’s SCOTUSblog posted the list by 8:37 a.m. The mishap was another reminder that the legendary “First Monday in October” isn’t what it used to be. The first Monday in October is when, by statute, the Court begins its term, and it was memorialized in a 1981 movie by the same name in which Jill Clayburgh played the role of the Court’s first female justice. This year the first Monday in October was also the deadline the Senate set for confirming John Roberts Jr. to be the next chief justice. But last Tuesday’s orders list — early or otherwise — underlines the fact that the Court’s work really begins earlier, at the long conference. Justice Sandra Day O’Connor, who has had to delay her retirement plans, was at the conference Monday and fully participating — even though she may not be on the Court when the cases granted are argued. But before a few years ago, even the dispositions decided at the long conference were not announced until the First Monday, adding to its luster. Lately, however, the Court has slowed to a trickle its pace of granting review to new cases. As a result, the cases that it grants in the spring for argument in the fall term barely fill the Court’s argument calendar for the fall. That, in turn, leaves the new term’s argument calendar hungry for new cases coming out of the long conference in September. This year, for example, before Tuesday’s list was released, the Court only had enough cases to fill slots through early January. And that means that if the Court waits until the traditional First Monday in October to announce newly granted cases, advocates would have a fairly tight briefing schedule to meet in advance of January oral arguments. For the last several years, the Court’s solution to this problem has been to announce the new cases a day after the September conference, thereby giving lawyers an extra week to prepare. Advocates appreciate the gesture, even if it has taken attention away from the First Monday. As chief justice, Roberts will have a chance to tinker with the policy, directly or indirectly. He has already announced that he thinks the Court could stand to handle a few more cases than the 75 or 80 that it dockets today. If that occurs, then by a year from now, the calendar for the 2006 term won’t be starving for cases to fill argument slots, and there will be less need to give lawyers an extra week to prepare. The First Monday in October could be restored to its previous stature. But chances are good that Roberts will want to follow the new tradition rather than the old; as a one-time Supreme Court practitioner, he knows that even an extra few days of preparation can help. The Tuesday-before-the-First-Monday-in-October does not have quite the same ring, but its significance for the Supreme Court may be hard to change.
Tony Mauro can be contacted at [email protected].

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