In hopefully what is not a sign of things to come, the first month of the New Year passed without a single granted appeal from the Supreme Court of Virginia. This is not unusual. Last year the court did not grant an appeal until February 9, and that was the only grant that month. But the Court only granted 6 cases in December following the last writ panel of 2021.
The Court will already be facing a dwindling supply of potential cases while the Court of Appeals grows accustomed to its new role as the primary court for all appeals. Civil cases that just a month ago would have gone directly to the Supreme Court by petition, now must first make a stop in the Court of Appeals as appeals of right. One has to assume that some, perhaps a majority, of these cases will not be appealed to the Supreme Court because 1) having a written opinion to contest with tends to limit the flexibility of the appeal, and 2) having already spent money on the appeal in the Court of Appeals, many litigants will not want to “chase good money after bad.”
The Supreme Court has for several years now been granting fewer appeals and publishing even fewer decisions in those cases that have been granted. With no new cases in the pipeline for January 2022, one has to wonder if the Justices will be idle even before the summer recess. It’s a bit difficult to judge the current number of appeals waiting for merit argument because the Court’s webmaster has not been removing “appeals granted” from the website after they are decided as was irregularly done in the past. The Court granted just 59 appeals in 2021, and more than a few of those have already been briefed, argued and decided. The cases argued in the first merit session at the beginning of January had been granted as recently as July 2021, and only 29 cases were granted later in 2021.
Of late, the Court has been hearing fewer than 20 cases in a merit session, and in January it was just 10. So its possibly they could here roughly the same number of cases in February, April and June and then have more cases ready for September if they grant some more in the upcoming February writ session. Cases granted after the April or May sessions likely would not be ready for argument before October — and these session are likely to very sparse in any case because they will be the first ones without new civil cases appealed from the circuit courts.