In previous posts, we’ve suggested that the period from the end of amicus/supplemental briefing to the oral argument is a reasonable proxy for the Court’s decisional period. So, if we revisit the data, divided by affirmances, reversals and split decisions (partly affirmed, partly reversed) – can we predict the result based on the wait from briefing to argument? Let’s review the data.
In Table 1154, we review the average days from end of briefing to oral argument, divided by affirmances, reversals and partly affirmed, partly reversed. One caveat before we dive in – split results where the Court affirms in part and reverses in part are very rare in any particular year, so some caution is appropriate in reviewing that data.
In the 1990s, there was no clear association between lag time in the decisional period and the final result. Affirmances took the longest in four years, split decisions took the longest in three years, and reversals took the longest in three years. Note the wide divergences at times – in 1991, affirmances averaged 296.23 days, while split decisions averaged 168 days and reversals averaged 153.15 days. In 1993, affirmances averaged 184.21 days to 105 days for splits and 117.21 days for reversals. In 1996, affirmances averaged 132.6 days, split decisions averaged only 77.33 days and reversals averaged 207 days.
Between 2000 and 2009, affirmances took longest in four years, reversals took longest in four, and split decisions – partial affirmance, partial reversals – took the longest in two years. In 2002, affirmances averaged 156.68 days, split decisions averaged 192.75 days and reversals averaged 246.86 days. In 2003, reversals averaged 226.48 days, affirmances averaged 127 days and split decisions averaged 101.75 days. In 2008, split decisions averaged 378.67 days, affirmances averaged 290.31 days and reversals averaged 257.43 days. In 2009, reversals averaged 325 days, split decisions averaged 250 days and affirmances averaged 232.33 days.
Between 2010 and 2019, affirmances took longest in four years, reversals in three and split decisions in three. In 2011, affirmances averaged 101 days from end of briefing to oral argument. Reversals averaged 152.43 days while split decisions averaged 406 days. The following year, affirmances averaged 208.71 days, reversals averaged 245.47 days and split decisions averaged 319 days. In 2014, affirmances averaged 160.8 days, reversals averaged 296.67 days, but split decisions averaged only 88 days. In 2015, reversals took 331.55 days, affirmances took 234.56 days, but split decisions averaged only 166.33 days. In 2016, numbers jumped: reversals took 407.16 days, affirmances took 310.6 days and split decisions took 345 days. In 2017, split decisions averaged 509 days. Reversals averaged 385.56 days, while affirmances averaged only 344.18 days. In 2018, affirmances averaged 296.5 days, reversals averaged 231.09 days, but split decisions averaged only 110 days (recall, the previous year, they averaged 509 days – a reminder that split decisions are a very small database in any given year). So far this year, affirmances have averaged 295.4 days, reversals have averaged 259.77 days, while split decisions – partial affirmance, partial reversal – averaged only 134.33 days.
Join us back here next Thursday and we’ll further explore whether there’s any correlation between lag times and case result.