The Supreme Court released its calendar for its March sitting this morning. The calendar includes some high-profile cases – most notably, Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be able to use the boys’ bathroom at his Virginia high school, which will be argued on March 28. The calendar also includes two cases – Murr v. Wisconsin and Microsoft Corp. v. Baker – that were granted before the death of Justice Antonin Scalia but had not yet been scheduled for oral argument. However, the third case granted before Scalia’s death, Trinity Lutheran Church v. Pauley, still has not yet been slated for oral argument.
The Gloucester County case first arrived at the court in July 2016, when the school board asked the justices to block a lower court ruling that would have required the school to allow G.G. to use the boys’ restroom. The Supreme Court agreed to do so, with Justice Stephen Breyer providing the fifth vote needed to put the lower court’s ruling on hold, and the justices announced in late October that they would review the case on the merits. In early December, the court extended the briefing schedule for the case, giving each side additional time to file its main merits brief. The new schedule also meant that, although the case likely would have been scheduled for oral argument in the court’s February sitting, it was instead pushed back to March.
There is no way to know why the briefing schedule was altered, but the change cannot be attributed to an already-full schedule in February: On three of the five days in the February sitting, the justices heard arguments in only one case, rather than the now customary two. But the new schedule does give the Trump administration the opportunity to determine the federal government’s position in the case, while under the old schedule any “friend of the court” briefs supporting G.G. would have been due before the Obama administration left office. As I explained in an earlier post, the time for the Trump administration to file a brief in the Supreme Court supporting the school board has passed, but the federal government could still rescind the Department of Education letter at the heart of the case or issue its own guidance on the issue.
On March 20 and 21, the court will hear arguments in Murr and Microsoft, two of the three cases that were granted on January 15, 2016, but had not previously been scheduled for oral argument. Under the court’s normal procedures, those cases would normally have been slated for oral argument by the fall of 2016 at the latest. But although the briefing in all three of the cases had been completed by mid-August of last year, none appeared on the argument calendars until today. Here too there is no way to know for sure why the cases remained on hold for so long, but we had speculated that Scalia may have been one of the four votes to grant review – the more conservative position lost below and sought review in each case – and that a desire to avoid a 4-4 tie, in the absence of a ninth justice, might have explained the delay. However, it is unlikely that Judge Neil Gorsuch, President Donald Trump’s nominee to fill the vacancy created by Scalia’s death, will be confirmed and ready to hear oral arguments by the time the March sitting starts on March 20.
Factors outside the court may also help to explain the delay in scheduling the Trinity Lutheran case, in which a Missouri church is challenging the constitutionality of its exclusion from a state program that provides funds to non-profits to allow them to resurface their playgrounds with recycled rubber. The state’s brief in the case was filed in June of last year by then-state attorney general Chris Koster, a Democrat. However, a new attorney general took office in Missouri earlier this year: Republican Joshua Hawley, who filed a “friend of the court” brief supporting the church. Hawley has recused himself from the case, but efforts to settle the dispute before it goes to the court may nonetheless be ongoing.