Today, the Supreme Court ends its summer break by considering thousands of petitions in a private meeting. Few will be chosen for arguments, but the process is a little understood but critical part of the Court’s work.
Known as the “long conference,” the meeting is important, and not without some controversy. The nine justices will somehow evaluate about 2,000 petitions and other motions, and accept just a few for the term that starts on the first Monday in October.
How do the nine Justices review about 2,000 cases and make decisions on accepting them, while they are ostensibly on summer vacation? That reading and reviewing is left to clerks who work for the Justices, who for the most part team up to decide which cases to recommend to the Justices for acceptance.
Last September, the Justices accepted 8 new cases from the petitions it had received over the summer. (The website Certpool has a list of this year’s petitions.)
During the long conference, the Justices will accept more cases than usual but also reject a much-higher percentage than usual, because of the sheer bulk of the cases before them.
A recent 2015 research paper published in the Law and Society Review found that the petitions arriving over the summer had a 16 percent worse chance of being accepted by the Court. The three researchers believed the reluctance of new clerks to recommend cases was part of the reason for the lower acceptance rate.
Among the notable petitions at the 2017 long conference are:
1. Collins v. Virginia. The question in this case is about an exception to the Fourth Amendment called the automobile exception. Based on a 1999 Supreme Court decision, the exception states if “a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle” without a warrant. In the Collins case, police saw a Facebook picture of what they believed was a stolen motorcycle, and then entered private property near a house, called its curtilage, to examine a motorcycle under a tarp, without a warrant. Collins claims Virginia’s courts expanded the automobile exception beyond precedents set the United States Supreme Court.
2. Bolden v. Missouri. This Sixth Amendment case examines the question of the timing of competency hearings for defendants, and if a conviction can be overturned based on a lack of counsel at such hearings. A central concept of the Sixth Amendment is that “in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” Bolden was arrested on robbery and other charges, and decided to represent himself in the legal process. Based on a preliminary statement Bolden made, the local court agreed with the prosecution’s request for a pretrial competency hearing. A state examiner found Bolden competent, and he was later convicted on four life sentences. A Missouri appeals court ruled that Bolden needed an attorney at the pretrial competency hearing and ordered a new competency hearing for Bolden. But Bolden wants his convictions overturned, based on precedents set in other cases, and a new trial held.
3. Davis v. United States. The petition in this case is about immunity granted to witnesses in a criminal trial. The Fifth and Sixth Amendment allows for the accused in criminal trials to call for defense witnesses. But does the Fifth Amendment compel the prosecution to grant immunity to a defense witness it doesn’t consider truthful? Or does denying a defense witness immunity request violate a person’s right to present evidence in his own defense? In this federal case, two brothers were asked to testify as witnesses in an extortion case. One brother accepted a prosecution offer of immunity and testified against the defendant. Prosecutors denied an immunity application from other brother, who was expected to support the defendant, but would have potentially implicated himself on other grounds. The defendant lost on appeal and wants the Supreme Court to settle a split among other federal courts on this issue.
Cases granted for arguments by the Court from the long conference should be announced this Thursday.
Scott Bomboy is the editor in chief of the National Constitution Center.