In the 12 months before September 30, 2014, the Third Circuit decided 2,402 cases. It heard oral argument in 238 of them, or 9.9% of its cases. The other 90.1% it decided without oral argument.
So what does that mean?
Well, the Third Circuit heard the fewest oral arguments in 2014 of any circuit. (The circuit-comparison stats all exclude the Federal Circuit.) The D.C. Circuit, which decided about a fifth as many cases, held more oral arguments. The Eighth Circuit, which decided a similar-but-smaller number of cases versus the Third Circuit, held 169 more oral arguments, or over 40% more. Even the Fourth Circuit, the only circuit that held oral argument in a (barely) lower percentage of its cases, held over 100 more arguments. When it comes to number of cases decided on the merits, the Third Circuit ranks 8th out of 12 circuits, middle-of-the-pack. Overall, the Third Circuit granted oral argument half as often as its sister circuits.
What about 2013? Same picture, even a little more extreme. In the year ending in 2013, the Third Circuit decided 2,715 cases and heard oral argument in 225, or 8.3%. Again, fewer oral arguments than any other circuit, and this time the Third Circuit had the lowest argument rate of any circuit.
[For 2015, the AOC hasn’t done the math yet. The raw numbers they’ve released for the 12 months before June 30, 2015 — the most recent data available — show the Third Circuit still holding the fewest oral arguments of any circuit, with an argument rate of 10.7%.]
Whoa, right? But there’s more.
Let’s look at how the Third Circuit’s argument numbers have changed over time. This graph shows the number of oral arguments the court has heard each of the past 17 years:
And here is the percentage of the court’s cases in which it heard argument over the same period:
That second graph shows that the plunge in oral arguments isn’t caused by a drop in the total number of cases. (To the contrary, the court is deciding on the merits 30% more cases per year compared to the late 90s.)
So it’s clear what we’re looking at isn’t any statistical blip: this is a robust trend, a historically significant transformation of the functioning of the court. The Third Circuit hears half as many oral arguments as it did a decade and half ago. A Third Circuit litigant around 2000 was three times more likely to get oral argument than she is today.
Now, I’m not the first one to notice this trend. Howard Bashman wrote this column in the Legal Intelligencer — after a year (2011) when the court heard 82 more arguments than it did in 2014 — arguing that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.” He concluded:
It may require at least a bit more work from the Third Circuit’s judges to slightly relax their current extreme reluctance to grant oral argument, but I cannot help but think that the extra work would yield great benefits in the form of stronger rulings and more satisfied litigants who will know that, win or lose, their arguments have been heard.
As a CA3 practitioner myself, there have been a few times I’ve been disappointed when the Third Circuit decided a case of mine without argument, cases where I believed I had raised substantial appellate issues. But, since I started my practice in 2010, the Third Circuit has heard oral argument in 30% of my cases. So I can’t complain, I’ve actually been fortunate.
But there’s still more to the story.
I’ve blogged here before about how the circuit’s rates for published opinions have dropped and are the lowest in the country. So, how do recent oral argument rates and publication rates compare? Take a look:
Both curves are down from 2009, cratered in 2013, and rebounded a bit in 2014.
Curiously, the circuit’s reversal-rate curve is similar, too:
Coincidence? Or are the similar-looking argument and publication graphs related?
Back in 2011, former Third Circuit Judge Timothy Lewis wrote (the emphasis is mine):
There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court’s business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate.
It’s natural to wonder if the plunging rates for argument and publication are related to the unconscionable delays in filling the seats vacated by Judges Sloviter and Scirica in 2013 — over a year before Judge Krause was commissioned, over 2.5 years before Judge Restrepo was. The court faces still a similar delay now, seven months and counting since Judge Rendell went senior, still waiting for a nominee.
As I noted above, the court is deciding 30% more merits cases now than it did in the late 90s — about 750 more per year — yet it hasn’t gotten a single new seat since 1990. When you take a busy court, jack up its caseload by 30%, add zero new judges, and drag your heels filling openings — well, at some point, as Judge Lewis said, there are consequences.
My hypothesis is that we’re looking at two consequences: fewer oral arguments and fewer published opinions. Now, these trends didn’t just appear in 2012 and they’re not limited to the Third Circuit. They could well be unrelated to caseloads and to each other. And the Third Circuit isn’t the only circuit struggling with vacancies. So I haven’t proven that hypothesis here.
But, if I am right, then the root of the problem here isn’t the court: it’s Congress.
[Notes: I’m grateful to top CA3 advocate Brett Sweitzer, among others, for raising my awareness of the oral argument drop at a recent forum of the Third Circuit Bar Association. The oral-argument data cited in this post are from AOC table B-10. The decided-cases data and the 6/30/2015 raw data come from B-1, reversal data come from B-5, and opinion-publishing data come from B-12.]