In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many.
A couple of weeks ago, the Supreme Court advocacy clinic at Yale Law School held a conference to explore the mystery of the court’s shrinking docket. Law professors presented data, theories and speculation. Expensive lawyers told rueful stories about can’t-miss cases that somehow did not make the cut.
Some participants blamed the newer justices, others their clerks. Some blamed Congress, saying it is not cranking out enough confusing legislation. And some blamed the Justice Department, which is filing fewer appeals.
But there emerged nothing like a definitive answer to why the court now selects perhaps 80 cases from more than 8,000 requests for review it receives every year.
I suppose this is as good a time as any to dust off a post of mine from June, Granting or Denying The Writ of Certiorari: The Most Important Decision by Supreme Court Justices:
Thus, for the vast majority of cases, the parties must first complete all of their appeals through state or federal appellate courts, after which they file a "writ of certiorari" with the Supreme Court requesting the Court hear their case. About 8,000 of these writs are filed every year. The Supreme Court grants (through a vote of at least four justices in favor) about 1 or 2% of them.
Why is this so important? Of course, a Supreme Court decision is always a big deal, affecting the livelihood and liberty of millions of people.
But there’s another reason, too, one that goes to the heart of debates about "judicial temperament:" the law of unintended consequences.
Just as the best-laid plans of mice and men go oft’ astray, so too do Supreme Court decisions:
Appellate judges who don’t first serve as trial judges are prone to stupid decisions. Not because the judges themselves are stupid, of course, but because they literally don’t know what they’re doing. Example: Scalia insisting that his 2006 Davis decision imposed a constitutional test that was "objective and quite ‘workable’."
After three years, that test has come to mean something different in every state – literally, without exaggeration, different in each of the 50 states. It produces contradictory results on a daily basis. It’s become a constitutional Rorschach test, revealing judges’ biases with hi-res fidelity.
So was Scalia lying? Of course not. How could he have known enough to be able to lie about what he was doing? He’s never been a trial judge, never practiced criminal law, and hasn’t practiced any kind of law since 1967. He was just guessing.
Since these days actual ideology is off the table in Supreme Court confirmation hearings (everyone claims they don’t want to "prejudge" the issue (PDF), even to the extent of neither agreeing nor disagreeing with existing case law), we should at least examining when, how and why a potential Justice would grant the writ.
It’s not necessarily wrong for the Court to take few cases — indeed, abstention generally makes the law more stable and predictable because the intermediate appellate courts are far less likely to issue sweeping rulings that change existing law.
Indeed, for the "unintended consequences" reason above, on many issues the Supreme Court should wait for organic development of the law by way of actual cases litigated throughout the District Courts and Circuit Courts of Appeal. That way, the Supreme Court can see those consequences on a smaller level before irrevocably applying them to the whole country, rather than dealing with the aftermath of an ill-considered decision.