Thursday, December 07, 2006

Case of the Dwindling Docket Mystifies the Supreme Court

The New York Times
Case of the Dwindling Docket Mystifies the Supreme Court

WASHINGTON, Dec. 6 — On the Supreme Court’s color-coded master calendar, which was distributed months before the term began on the first Monday in October, Dec. 6 is marked in red to signify a day when the justices are scheduled to be on the bench, hearing arguments.

The courtroom, however, was empty on Wednesday, and for a simple reason: The court was out of cases. The question is, where have all the cases gone?

Last year, during his Senate confirmation hearing, Chief Justice John G. Roberts Jr. said he thought the court had room on its docket and that it “could contribute more to the clarity and uniformity of the law by taking more cases.”

But that has not happened. The court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one.

The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s. And aside from the school integration and global warming cases the court heard last week, along with the terrorism-related cases it has decided in the last few years, relatively few of the cases it is deciding speak to the core of the country’s concerns.

The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it.

In a divided court, in a divided country, the court’s reduced role is perhaps not surprising, nor is it necessarily a bad thing. “In the post-Bush v. Gore era, the court may be concerned about taking the wrong case and making an unpopular decision,” said Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, in an interview.

Professor Schauer argued in a recent and much-discussed Harvard Law Review article that the court’s work “had only minimal direct engagement with the central issues of the nation’s public and policy agenda.” In an interview, he said, “I think they like being under the radar.”

In private conversations, the justices themselves insist that nothing so profound is going on, but rather seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria. The most important of those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts.

But there are still plenty of lower-court conflicts that go unresolved, said Thomas C. Goldstein, a Supreme Court practitioner and close student of court statistics who wrote last week on the popular Scotusblog that the justices were “on the cusp of the greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history.”

“I don’t think we’re at the end of history and have fixed all the problems,” Mr. Goldstein said in an interview.

One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail. To grant a case takes four votes, which can be a heartbreaking distance from the five votes it takes to win. Scholars of the court call this risk-averse behavior “defensive denial.”

While such behavior may account for a portion of the shortfall, it can hardly provide a global explanation, because only a relative handful of the 8,000 appeals that reach the court each term are ideologically charged.

Other, more neutral explanations provide likely pieces of the puzzle.

One is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.

As recently as the court’s 2000 term, the solicitor general filed 24 petitions, of which 17 were granted. Last term, it filed 10, of which the court granted 4. This term, the solicitor general has filed 13 petitions; the court has granted 5, denied 3 and is still considering the rest.

Another explanation lies across the street from the Supreme Court, in Congress.

Over the years, about half the court’s docket has been made up not of constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s, including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has begun to dry up.

Another possible explanation is the method by which the justices screen the thousands of petitions. Eight of the justices, all except Justice John Paul Stevens, pool their law clerks and have only one clerk make the initial recommendation for each case.

The recommendation is not binding, of course. But there is a built-in “institutional conservatism” in which law clerks are afraid to look overly credulous and so are reluctant to recommend a grant, according to Stephen M. Shapiro, a former deputy solicitor general who practices law in Chicago with Mayer, Brown, Rowe and Maw.

“Perhaps the clerks have been trained to be naysayers for so long that they don’t know any other way,” Mr. Shapiro said in an interview.

The sharpest drop in opinions came after William H. Rehnquist became chief justice in 1986. He had made clear his belief that the court under Chief Justice Warren E. Burger was taking too many cases, and Congress assisted in 1988 by eliminating from the court’s jurisdiction a category of “mandatory” appeals to which the justices collectively had long objected.

In the early 1990s, after the number of decisions dropped to 107 from 145 in the space of five terms, Chief Justice Rehnquist responded to reporters’ questions by commenting wryly that the Supreme Court would be the first institution of American government to fulfill Karl Marx’s prophecy of the withering away of the state.

He was kidding, of course. The late chief justice believed in a muscular role for the court, and went on to show that he could accomplish more with less.

The question now, on a docket dominated by cases that only a law professor could love, is how much less.

“It’s not obvious to me that the court should be doing more,” said Orin Kerr, a visiting professor at the University of Chicago Law School who wrote on his blog that constitutional law scholars “are kind of bored these days.”

In an interview, Professor Kerr said that while it was easy to say that the court should be doing something different, “no two people would agree on how it should change.”