How controversial will the next Supreme Court docket be? We’re about to find out

Supreme Court justices will meet behind closed doors Tuesday for their private “long conference” ahead of the next term, the results of which may offer clues as to how controversial and significant the new term will be.

The long conference gets its moniker from the sheer number of petitions for certiorari (review) that accumulated over the justices’ summer break. It is the unofficial kickoff of the new term that traditionally begins on the first Monday of October — this year on Oct. 2.

The groundwork for the conference starts in July, when a new class of clerks to the justices arrive and do the initial heavy lifting. They sort through roughly 1,000 petitions from death row inmates, corporations, individuals and organizations who are all hoping to persuade the justices to hear their appeals. Clerks make recommendations to the justices on whether to grant or deny review.

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Awaiting the justices in this long conference, for example, is a huge First Amendment speech battle over Texas and Florida laws restricting the power of social media companies to moderate and curate content on their platforms. And Washington’s state ban on conversion therapy for minors is at the center of a petition brought by a family counselor who claims the ban violates his speech and religious rights. Similar laws are in effect in 19 states and the District of Columbia.

The justices have been holding long conferences in September for about 50 years and credit goes to the late Justice Harry Blackmun, according to an account by the late Chief Justice William Rehnquist in his book, “The Supreme Court: How It Was, How It Is.”

“When I first came to the Court [in 1972], on the first Monday in October the justices simply came on the bench, announced to the world that they were back in session, and promptly recessed into conference to dispose of the petitions for certiorari that had accumulated over the summer. But shortly after I arrived, Justice Blackmun pointed out that if the Court were to move the summer certiorari conference, which generally lasts several days, back to the last week of September, it could then begin oral arguments a week earlier and allow an added week in the December recess where the time could be profitably used for working on opinions which by that time would already have been assigned. This suggestion was instantly approved by his colleagues, and we have done business that way ever since.”

Most lawyers who represent petitioners in the high court would prefer not to have their petitions scheduled for the long conference. Although that conference often results in more grants than are produced by regular conferences during the term, it also results in more denials, simply because of the larger number of petitions.

A 2015 empirical study by political scientists suggested another reason for the high rate of denials. It found that the higher denial rate in the long conference also was due to inexperienced or cautious new clerks. The study concluded that petitions arriving over the summer had a 16 percent worse chance of being granted by the justices.

Justices will keep adding cases to the new term until about mid-January. Even with new grants from the long conference, there still will be plenty of room for more cases to be argued. The justices currently have agreed to hear arguments in 22 cases — far fewer than the nearly 40 cases they began the term with four years ago.

And there likely will be no dearth of potentially high-profile cases waiting in the wings. The Biden administration, for example, has a petition pending that seeks to overturn a federal appellate court decision striking down federal approvals of the abortion medication mifepristone.

During the summer, a number of emergency applications seeking relief from lower court decisions were filed in the Supreme Court. Some of those already have or will become petitions for review. The Biden administration seeks reversals of appellate court decisions invalidating federal restrictions on ghost guns and bump stocks. Alabama has returned to the high court to defend, for a second time, a redistricting map that violates the Voting Rights Act. And the Biden administration is fighting a lower court injunction barring a wide range of administration officials from communicating with social media platforms.

And perhaps the biggest question mark: Could the justices soon see a constitutional challenge to the state ballot eligibility of former President Donald Trump based on his role in the Jan. 6 attack on the U.S. Capitol building?