A Less Discretionary Docket for the Supreme Court

Today, we continue our series of posts (here and here) summarizing our draft article, Judicial Duty and the Supreme Court’s Cult of Celebrity.

Over the years, critics of the Supreme Court, especially political conservatives, have argued that Congress should strip it of jurisdiction over hot-button issues like abortion, busing, and school prayer. Here we advance the novel suggestion that judicial restraint can be encouraged by giving the Supreme Court more to do, not less.

In his famous analysis in the Federalist Papers, Alexander Hamilton assured his audience that the judiciary “may truly be said to have neither Force nor Will, but merely Judgment.” The executive, Hamilton noted, controls the government’s coercive force, while the legislature commands society’s material resources and prescribes the rules to which the community is subjected. By contrast, the judiciary “has no influence over either the sword or the purse, no direction either over the strength or of the wealth of the society, and can take no active resolution whatever.”

Unlike the Court envisioned by Hamilton, the modern incarnation is energetically adventurous, for the most part deciding only those legal or political issues that it deems interesting and important. Yet the Court is often wont to opine so enigmatically that little guidance is given to the lower courts, which are left to decipher the Court’s sphinx-like utterances. Furthermore, lower courts reach conflicting conclusions on many legal questions, and the Supreme Court often prefers to let the confusion “percolate” for an indefinite time.

Having ceased to be a court in a Hamiltonian sense—humble, exercising judgment rather than will—the twentieth century Court seemed to slip the surly bonds of earth. Possessing an almost unfettered power to choose their cases, they reached into the dockets of the lower courts—state and federal—and chose hundreds of cases in fields that interested them.

Although the ideology of the Court shifted after Warren Burger became Chief Justice, the energy level hardly flagged. In part, this reflected Burger’s desire to reverse some of the Warren Court’s precedents. The Supreme Court’s docket from the 1950s through the 1980s was, at least by today’s standards, staggeringly heavy.

Academics warned at the time that the Supreme Court was stretched to the breaking point, and nothing short of radical overhaul could preserve it from collapse. Paul Freund and Erwin Griswold, to name just two illuminati, lent their lustrous names to the idea of a “national court of appeals.”  Nothing came of the idea, and the Justices groaned—noisily—under the weight piled atop their frail and aging bodies. Justice Brennan, who was 77 years old at the time, pronounced that the Court’s docket was “tax[ing] [human] endurance to the limits.” Much academic commentary at the time suggested that the Supreme Court caseload was simultaneously too large to be handled well and too small to monitor and harmonize the swelling caseload in the lower courts.

Apparently, the Court did not need such help, for its overwork problem soon evaporated. The once-overburdened Supreme Court is now said to be underworked. In the late nineteenth century and early twentieth century, we should recall, the Court usually heard around 200 to 300 cases per year. The Court’s caseload, which in the early 1980s hovered around 150, plummeted in the early 1990s, and has remained durably between 70 and 80 for over a decade.

One can cast this development in a positive light.  In an article written a few years after he joined the Court, Justice Scalia argued that the Supreme Court should not be obsessively patrolling the lower courts’ opinions: its goal should be to state general principles of law, and then allow the lower courts to apply those principles as best they can.

As Professor Arthur Hellman notes, there is a less benign view: “The Court, if not imperial, has now become Olympian. The Justices seldom engage in the process of developing the law through a succession of cases in the common-law tradition. Rather, Court decisions tend to be singular events, largely unconnected to other cases on the docket and even more detached from the work of lower courts.”

We think that a move to anonymous opinions, discussed in the previous post, would foster a more coherent body of doctrine, with Justices less inclined to pursue individual glory and more concerned with the Court’s overall reputation. An additional means to bridge the gap between the Supreme Court and the rest of the American judicial system is to reduce the Court’s unfettered discretion over its own docket.

At present, there are four statutory mechanisms for Supreme Court review, two of which are rarely triggered. This leaves only discretionary review under 28 U.S.C. 1257 (from state supreme courts) and 28 U.S.C. 1254 (from federal courts of appeals). The first paragraph of Section 1254, which covers writs of certiorari, is familiar; the second paragraph provides another mechanism for review:

By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

The Court’s hostility to this provision has rendered it essentially a nullity. This is unfortunate. There are many cases in which the decision of one court of appeals conflicts with another, whether because of an ambiguity in a federal statute or in the Supreme Court’s case law. And there are undoubtedly many more in which circuit courts are internally divided because of the same sorts of ambiguity.

We propose adding a provision to 28 U.S.C. 1254 providing that each term, the number of cases taken by the Supreme Court pursuant to the first paragraph (discretionary certiorari petitions) may not exceed the number of cases taken pursuant to the second paragraph (court of appeals certifications). The Supreme Court’s docket would then be driven partly by the perceived needs of the judicial system, as determined by the lower court judges themselves.

The Supreme Court presumably would encourage the courts of appeals to certify certain kinds of cases, and some questions that would in any event be reviewed on certiorari would presumably arrive by certification instead. But perhaps the Court would also be forced to review some cases in which it would not have granted certiorari. It is likely (or at least so we hope) that the courts of appeals would mostly certify cases dealing with frequently litigated issues on which Supreme Court precedent is especially unclear.

The upshot would be to diminish the Supreme Court’s ability to engage in the hit-and-run strategy of announcing a muddled opinion and then leaving others to clean up the mess. The Court would be forced, to some extent, to internalize the cost of its own lack of clarity, which would complement and reinforce the healthy effects that we expect from a practice of issuing anonymous opinions.