There are a lot of things that an experienced practitioner can help predict. Some they can’t. One of those things that I have not developed an effective intuition for is: when will the Supreme Court continue oral argument?
There are lots of reasons one may not want to have oral argument go forward on the scheduled date: a conflict with a trial, an upcoming medical procedure, or even a vacation. By and large, the Supreme Court denies most motions for continuance of oral argument. This attitude begins in S.Ct.Prac.R. 17.01(D):
An oral argument assignment before the Supreme Court takes precedence over assignments in other courts of this state.
So let’s take a look at two recent examples:
State v. Christian Carlisle, Case No. 2019-1700: On June 4, 2020, the case is set for virtual oral argument on July 22, 2020. On July 16, 2020, the counsel for the appellant moves to continue the oral argument due to a back surgery scheduled for July 21. The back surgery is necessitated by a recent injury. One day later, the Court grants the motion unanimously.
Rayco Manufacturing, Inc. v. Murphy, Rogers, Sloss & Gambel, Case No. 2019-1498: On July 9, 2020, the case is set for virtual oral argument on Aug. 18, 2020. On July 28, 2020, counsel for the appellees files an unopposed motion to continue oral argument because lead counsel is adopting a newborn baby in Massachusetts in early August, and Massachusetts requires a presence in the state for two weeks after birth. Counsel notes that the adoption notice was only received after the oral argument notice. The court denied the motion, again unanimously.
So what’s the difference? Does the Supreme Court respect surgeries and hate adoptions? Probably not. One difference in this era is that both oral arguments were scheduled virtually. There was no stated reason in the Rayco motion as to why counsel could not be prepared for a virtual argument. The only reason stated was that counsel had to be out of the state (which was only really relevant if the argument was in person). If counsel was concerned about the time required to deal with a newborn, stating this directly might have improved the outcome.
Sometimes I wonder whether the Supreme Court denies continuances when there are multiple counsel listed for a party (under the theory that the “next lawyer up” should be able to handle the argument). But that doesn’t explain things here: both cases had other counsel listed for their respective parties.
In short, the only advice I have at this stage, is always file your motion as early as you can. I’ll try to make this a series if there are any lessons to be drawn from future requests to continue oral argument.
Aug. 18, 2020 Edit: Of course, sometimes there’s a more obvious reason for decision-making. This is a judicial election year, and the Aug. 18 oral argument session is the last one for the year. Under court custom, all cases briefed and scheduled for argument must be decided by the end of the year (in case there is a change in the composition of the court). Continuing oral argument wouldn’t work here — the next argument would not be until the newly-elected justices are sworn in in January.