What explains the Supreme Court’s shrunken docket? Adam Liptak reports on various theories to explain why the Supreme Court takes fewer cases, including increased participation in the “cert pool” and a decline in cert petitions filed by the Solicitor General. Liptak also highlights research by University of Minnesota law professor David Stras focusing on the Court’s membership.
A crop of five new justices who joined the court starting in 1986, he found, voted to hear cases far less often than the justices they replaced.
“You saw the docket fall off a cliff” as these justices took their seats, Mr. Stras said in an interview.
It takes the votes of four justices to hear an appeal — or, in the language of the court, to grant a petition for a writ of certiorari. Mr. Stras examined all of the more than 2,500 appeals from 1986 to 1993 that attracted at least one such vote, drawing on the papers of Justice Harry A. Blackmun, which contain the most recent publicly available data.
The starkest difference was between Justice Byron R. White, who voted to hear an average of 216 cases per term from 1986 to 1992, and his replacement, Justice Ruth Bader Ginsburg, who voted to hear 63 cases in 1993.
The phenomenon seemed to cut across ideological lines. Justice Clarence Thomas voted to hear 72 cases per term, down from Justice Thurgood Marshall’s 125. Justice David H. Souter voted to hear 83 cases per term, down from Justice William J. Brennan Jr.’s 129. . . .
The effect of adding those new justices, Mr. Stras found, meant that by 1993 the Supreme Court was “essentially operating with the functional equivalent of only seven of the members of the pre-1990 court.”