A little publicized custom at the Ohio Supreme Court is that in years in which a Supreme Court justice is up for a contested election, they generally stop hearing oral arguments sometime in late August/Early September. Today was the last one on the calendar. I have mixed feelings about this practice.

Ostensibly they do so in order to make sure there’s no conflict in having a case heard but not decided if one of the sitting justices is not re-elected, with the goal of having all briefed and argued cases completed by the end of the year. I am sure for those justices on the campaign trail that not having to hear oral argument is nice as well.

What I like

  • If you have a case pending, there are extremely high odds you will receive your decision before December 31
  • In my perception, the Court generally gets “caught up” on its jurisdictional decisions (shortening the time between the final memoranda and the announced decision of whether or not to take the case)
  • Because the Court has “cleared out” any backlog on opinions, there is the possibility of a faster turnaround time in cases when the Court resumes oral argument

What I don’t like

  • It delays oral argument for cases that are fully briefed. The court is normally on a 5-8 week window from completed briefing to oral argument. One of the cases argued today was fully briefed July 21 — meaning any case for which the briefing is completed after that is not being heard until January at the earliest
  • It may mess with reconsideration motions. If your merits decision is released in mid-November, there may be an “anchoring effect” to avoid reconsidering a decision that would require rewriting an opinion in December. Or in the inverse, a reconsideration motion decided a newly constituted Court may take the opportunity to completely revisit the merits (see the dissents of Justices Kennedy and Fischer in State v. Braden, 2019-Ohio-4204)

As you may have guessed, both “What I like” and “What I don’t like” are things that have happened to me personally in some form or fashion. It is sometimes tough to explain to clients that the court is taking off four months. It also makes relearning the case for the purposes of preparing for oral argument a more expensive endeavor. Being aware of these timing concerns does help evaluate whether settlement or mediation might be appropriate if there will be a built-in six month “pause” in the decision-making process at the Ohio Supreme Court.

Are there any other “unpublished” rules you know of? Contact me below.