Last time, we looked at whether the Court’s lag time – from the allowance of a petition for leave to appeal to oral argument, and from oral argument to decision – gives litigants a hint of what the Court’s decision is likely to be. We showed that although there’s no consistent relationship between lag time and result as a whole, affirmances tend to take longer, all else being equal, from the grant of review to oral argument, and reversals take longer from the oral argument to decision. So what patterns do we see in the criminal docket?
In nine of the past ten years, reversals in criminal cases have taken longer from grant to argument than affirmances have. In 2008, reversals took an average of 245.77 days from the grant of review to oral argument, and affirmances took 226.71 days. 2009 was the lone outlier – that year, affirmances averaged 288.2 days to 284 days for reversals. But in 2010, reversals averaged 273.95 days, affirmances averaged 266.96. In 2011, reversals averaged 270.68 days, affirmances 266.53 days. In 2012, reversals averaged 308 days from grant to argument, while affirmances averaged 259. In 2013, reversals averaged 294.65 days, and affirmances averaged 263.69 days. In 2014, reversals averaged 285.5 days and affirmances averaged 258.14 days. In 2015, reversals averaged 289.14 days, and affirmances averaged 241.6 days. In 2016, reversals averaged 290.71 days from grant to argument, while affirmances came on for argument in an average of 254.73 days. Last year, reversals averaged 287.69 days, and affirmances averaged 264.36 days.
As we noted above, the relationship between lag time and result flips when you compare grant to argument and argument to decision – affirmances take longer to argue, reversals take longer to decide. The criminal docket is somewhat different; although the relationship is not as strong, reversals tend to take somewhat longer regardless of whether we look at grant to argument or argument to decision.
In 2005, affirmances averaged 228.6 days from argument to decision, while reversals averaged 208.67 days. In 2006, reversals averaged 113.9 days, while affirmances averaged 112.36 days. In 2007, affirmances averaged 143.75 days to 131.21 days for reversals. In 2008, reversals averaged 152.74 days, while affirmances averaged 103.5 days. In 2009, reversals averaged 178.67 days, while affirmances averaged 150.83 days. In 2010, the two numbers were almost identical – affirmances averaged 139.97 days, and reversals averaged 139.42 days.
In 2011, affirmances averaged 165.52 days, while reversals averaged 131.13 days. In 2012, affirmances averaged 134.07 days, and reversals averaged 121.69 days. In 2013, reversals averaged 160.61 days from argument to decision; affirmances averaged 101.14 days. In 2014, reversals averaged 103.85 days, while affirmances averaged 98.29 days. In 2015, reversals averaged 143.14 days from argument to decision, while affirmances were decided in an average of 95 days. In 2016, reversals averaged 171.82 days in criminal cases. Affirmances averaged 124.73 days. Last year, reversals averaged 154 days from argument to decision, while affirmances took on average 126.69 days.
Given the more consistent relationship between lag time and result on the criminal side, we would expect reversals to average more days pending, from grant of review to decision, in most years compared to affirmances. And that’s what we see – in nine of the ten years from 2008 to 2017, reversals were pending longer than affirmances in criminal cases. Indeed, in 2008, 2012, 2013, 2014, 2015, 2016 and 2017, reversals averaged a month or more longer from grant to decision than affirmances did.
Join us back here next week as we turn our attention to another issue in our ongoing study of the Court’s decision making.