Bench Memos

NRO’s home for judicial news and analysis.

Whiling Away the Boring Hours at the Court?


Linda Greenhouse has an interesting story on the front page of today’s New York Times (it sometimes happens), about the dwindling docket of the Supreme Court.  She reports: “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 this term could wind up with considerably fewer than last year’s 69.  This could make the Court a serious rival to the Congress for lightest work schedule in Washington (see here for a story on the congressional workload, and Democrats’ promise to work five days a week in the new Congress rather than three).

The causes and consequences of this shrinkage in the Court’s annual business are interesting.  As for causes: Has it happened because the justices’ clerks are too conservative in recommending certiorari?  Because the justices themselves are individually risk-averse, afraid to vote to take cases they might lose?  Because Congress’s legislative pace is down from past years?  Because the government wins more cases in lower courts and therefore files fewer petitions for review?  All of the above?  One thing’s for sure: the Court is today more in control of its docket than ever in the past—and it’s a fair question whether it is too much so.

As for consequences, it’s easy to be of two minds about this.  Is the Court leaving any important legal issues unsettled, shirking its duty to bring clarity and uniformity to federal and constitutional law?  Perhaps in some respects it is, and this would not depend merely on whether conflicts between the circuit courts are left in place; there could well be issues on which no such conflicts exist but that still would be worth addressing at the high court.

But then the small, cynical voice in the back of my head suggests that the less work is done by the Supreme Court, the better shape the rule of law is in.  Even the potential for disarray or injustice at the circuit level may be preferable to the “certainty” the justices are capable of providing.

Tags: Franck


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