The Supreme Court gave itself an early Christmas present yesterday: two extra days off in December.
The court announced what cases would be argued during its December sitting. Six days had been set aside for oral argument -- Nov. 26, 27 and 28, and Dec. 3, 4 and 5. But the calendar released yesterday just stopped, without explanation, at Dec. 3.
In fact, no explanation is needed for what happened to Dec. 4 and 5. The court simply did not take enough cases last year to fill its docket this term.
Until yesterday, the court had dealt with the shortfall by hearing fewer cases on certain days: scheduling two or three instead of the normal four hours of argument. Even that fig leaf, however, did not suffice to cover the December gap. With three arguments scheduled on each of the first three days, the court simply set four hours of argument for Dec. 3 and decided to take the rest of the time off. (The justices will release orders on Dec. 10 and then will be out through Jan. 6.)
Asked about the missing days, Chief Justice William H. Rehnquist chuckled. "Well, the emperor has no clothes, I guess, and there's no way of concealing it. We didn't grant enough to get the calendar filled."
The court could have sped up some of the new cases it agreed to hear when the new term started this month, but that could have left it in the same boat trying to fill its January and February schedule -- not to mention the toll on frantic lawyers trying to meet the expedited schedule.
Court observers cite a variety of possible explanations for the problem, including Congress's abolition of a category of cases from those that justices are required to hear and the suspicion that there are fewer decisions from increasingly conservative federal appeals courts that attract the attention of the high court's conservative majority.
Under current practice, the court schedules five or six days of argument each month from October through April. One solution to the schedule gaps would be simply to lop off the April sitting, giving the court more time to work on the flurry of end-of-the-term opinions. But unless the shrinking docket remains at low levels for a few years, there does not appear to be any urge among the justices to take that step.
Like most things the court does, the cancellation of argument days appears to have some precedent. Spokeswoman Kathy Arberg, after poring over past calendars, said it appears that there were several days during the 1970s when the justices decided to call the whole thing off.
"It's rare, but it has happened," Arberg said.