Bench Memos

The Court’s Shrinking Docket

Why the sharp reduction in the Supreme Court’s caseload since the 1980s?  In the New York Times, Adam Liptak calls attention to a new (and refreshingly brief) paper by law professor David R. Stras that strongly indicates that changes in the Court’s membership are a primary cause.  Specifically, data from Justice Blackmun’s records for the years 1986 to 1993 show that each of the five justices appointed during those years—Scalia, Kennedy, Souter, Thomas, and Ginsburg—“was stingier with grant … votes than his or her predecessor.” 

Justice Ginsburg’s replacement of Justice White provides one striking example:  White “voted to grant plenary review a prodigious 215.6 times per Term …, or 67% more often than the next closest member of the Court,” while Ginsburg (in her only year included in the data) voted to grant review only 63 times.  As Stras explains, White and Ginsburg held very different views of the supervisory role of the Court:  White favored resolving circuit splits right away, whereas Ginsburg had (in 1987) complained about the “bloated size” of the Court’s docket.

Stras also raises the interesting question whether justices on both sides of the ideological divide on the Court were deterred from voting to grant review because of their lack of confidence that the Court would reach what they regarded as the right result.  But the limited data seem not to shed any light on that question.  (From 1990 to 1993, Chief Justice Rehnquist’s grant votes fell from 124 to 50, and Justice Scalia’s fell from 100 to 58.  But the vote totals of Justices O’Connor and Kennedy—whom the other justices would presumably regard as the main sources of uncertainty over how the Court would rule—also fell sharply, from 121 and 105, respectively, to 54 and 52.)