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The Shrinking Supreme Court Docket:
Linda Greenhouse takes a look here.

  UPDATE: My favorite line from the story: "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." I think this is right; I'm not aware of any juicy cases with clear splits and no vehicle problems that the Court inexplicably turned away. But even more interesting is the fact that Greenhouse would not only think to ask Justices their views of this problem, but would actually get answers from them for the paper. Now that's access.
Oren Elrad (mail):
Perhaps this is naive, but could they just allocate more time to oral arguments to fill in the gap?
12.7.2006 12:09am
Kovarsky (mail):
i'm guessing its attributable to the increased consensus to which roberts has sworn to create. it probably happens at both cert and merits stages, and i'm guessing backlog in one spills over. i'd be interested to hear if people agree wtih that hypothesis. i mean they have to circulate more documents more times, just to get increased shared sign-off from potential dissenters.
12.7.2006 12:48am
Kovarsky (mail):
uh, "that roberts has sworn to create."
12.7.2006 12:49am
OrinKerr:
Oren, the key issue is really the number of cases, not whether they are meeting in session.

Lee, I don't follow the argument. Why would increased consensus lead to taking fewer cases?
12.7.2006 12:52am
eric (mail):
I think he means that it is hard to muster 4 votes for cert because a waffling potential cert granter comes back into the fold. More consensus inevitably means less votes to grant cert by 4 potential dissenters.
12.7.2006 1:03am
Kovarsky (mail):
Orin - I mean both Eric's point as my (1) and also as my (2):

they are granting fewer petitions because they're spending more time on opinions. There have been three opinions this term - the california factor(k) one (which was a 5-4 or 6-3), then that PC on arizona voting procedure, and then an 8-1 in the Lopez immigration case. This may be a result of having to circulate more drafts to get the votes of marginal justices that might otherwise dissent or write separately (i don't think any of the 3 cases have concurrences). An increased institutional emphasis on consensus certainly requires more attention by the writing justice, who must court, so to speak, more than just 4 other justices. and i wouldn't be surprised if writing the opinions is also cutting into how quickly they deal with cert petitions. from what i admit may not be a statistically signficant sample, i've observed that it is taking longer to issue cert denials this term.

i'm sure there are other factors contributing to the slowed pace, but i just think these two might be of some mutually reinforcing significance.
12.7.2006 1:16am
OrinKerr:
Lee,

I don't think I follow these dynamics. It's not obvious to me why trying to reach consensus ends up taking more time on the merits; I can imagine a good argument that it's the other way around. As for Eric's point, can you explain a bit more? Maybe it's just me, but I don't think I understand.
12.7.2006 1:24am
Kovarsky (mail):
On why consensus building takes more time on the merits:

You're writing for 7 votes, not 4. The opinion has to be drafted more carefully up front to reflect this political reality (you can't just go for the language you know you can get 4 votes on). It also requires more pre-circulation, as different iterations of drafts get considered whereas before there might have just been a dissent from that recirculated part. I'm almost sure that Roberts has said expressly that emphasis on consensus requires more conferencing. Just think of it as a statute - how much longer would it take to draft statutes if you needed a chamber supermajority? If I'm for some reason wrong about that assumption, then I suppose the dynamic I reason from it is also wrong. What is the intuitive way that it might take less time with more emphasis on consensus?

On cert directly:

I'm guessing that Roberts is also willing to let cert petitions percolate a little longer if doing so is going to create more unanmity amongst the justices on cert petitions involving a particular, recurring issue. It isn't quite the same vote-courting as I explain above, but I do think it's taking longer to issue denials, and that is because I'm guessing that whatever internal procedures may be available to suspend final disposition of marginal petitions is now being utilized.

So in the end, I guess my number 2 is not really what Eric was explaining, although Eric fairly interpreted the sloppy language I had used to describe my (2) in the first instance.
12.7.2006 1:53am
OrinKerr:
Lee,

On consensus building:

I would think the primary way to persuade more people is to write more narrowly ex ante, not to run through repeated drafts ex post. The former will tend to shorten the time spent on that case.

On cert:

Is your thinking that the Justices try to reach an agreement on the substantively correct answer before granting cert? How and why would they do that?

Finally, what's your sense of how much ability a Chief Justice has to impose his preference for consensus on the other 8 Justices? If I understand your argument, it presupposes that the Chief Justice has a pretty significant ability to do that.
12.7.2006 2:04am
Kovarsky (mail):
Orin,

On merits: I see. There are counterveiling effects. You're seeking more consensus, increasing average time. But you're seeking that consensus partly by writing on a fewer number of issues, which would tend to decrease time. I think that's a fair point. I might be standing on the edge of a pin with respect to the respnose I give here and then my response below to your question about Roberts' ability to impose his procedural preferences. I suspect the factors net out as requiring more time, but (and here comes the contradiction with my answer below) I believe that's because Roberts can't control whether a justice can write a concurrence or dissent by any means other than the procedures available to him such as conferencing, encouraging more drafting, calling for votes, assigning the opinion, etc. in other words, the only way he can get the majority to decide on fewer issues is itself a time-consuming exercise in consensus building, for which the only tool he has is procedure. he assigned lopez to souter, which is telling in some ways.

on cert: no, I don't think they decide the merits of a case first. I think there are certain recurring issues - like Penry claims out of the Fifth Circuit - for which they see many petitions a year. I think on these issues, where the jurisprudence is either horribly confused or the subject of an express circuit split, they may be holding cases a little longer to decide (1) whether the issue is really cert worthy, and (2) if so, which of the possible petitions is the best vehicle for deciding that issue.

On the Chief: I don't think he can instruct a judge to maximise consensus, but i do think he has some procedural, agenda-setting type authority (described above) that can influence the degree of consensus.
12.7.2006 2:21am
Kovarsky (mail):
also, how is the decision to consolidate cases made? it seems if the court were consolidating fewer cases, it would be taking fewer too. but i have no idea about the stats or trends on that stuff.
12.7.2006 2:38am
Kovarsky (mail):
and, actually, i was wrong about there being no concurrence. in ayers/belmontes, scalia and thomas concurred ... to invoke a "persistent dissent."
12.7.2006 2:43am
Debauched Sloth (mail):
Most depressing line from the Greenhouse article: "The federal government has been losing fewer cases in the lower courts and so has less reason to appeal."

If the government has been losing fewer cases, there's obviouly less "bad law" (i.e., a court decision telling the feds there's something they can't do) for the Court to correct. Now if citizens had been winning more often in the lower courts, well, then we'd see the Court swinging into action to correct that intolerable situation. Ugh.

The most noteworthy "consensus" we can expect betweeen liberals and conservatives on the Roberts court (as is increasinly the case in the lower courts) is that whatever the government happens to be doing to citizens, it's no business of the judiciary to interfere. Not inevitably, of course (Lawrence), but as a general philosophical matter (Kelo, Raich).
12.7.2006 5:12am
Brett Bellmore:
I'm not aware of any juicy cases with clear splits and no vehicle problems that the Court inexplicably turned away.


Well, except for every 2nd amendment case in the last seventy plus years. Refused without cert., too.
12.7.2006 6:25am
Doug B. (mail) (www):
There are lots and lots and lots of "juicy" sentencing cases that have split the circuit and that impact thousands of defendants each month. Details here.
12.7.2006 8:12am
DJR:
One need only look at the petitions that Tom Goldstein has highlighted as possible cert. grants to see how the Court could take 150 or 200 cases rather than 70. I could point to a dozen cases rejected this term that were perfectly good splits without any real vehicle problems. If the justices are "mystified," it is because of how the pool memos are written, not because of any lack of cases.

On the other side, the Court is overly, er, solicitous of the Solicitor General's petitions. This week's case, Duenas-Alvarez, presented a phantom question that the 9th Circuit didn't really hold and that the respondent did not really even contest, a point which was made in the cert. opp. by very competent counsel.
12.7.2006 8:59am
blackdoggerel (mail):
"If the government has been losing fewer cases, there's obviouly less "bad law" (i.e., a court decision telling the feds there's something they can't do) for the Court to correct. Now if citizens had been winning more often in the lower courts, well, then we'd see the Court swinging into action to correct that intolerable situation. Ugh."

That's not entirely the reason why the government's greater success below leads to fewer granted cases. On balance, the government usually has much better lawyers than the individuals they are squaring off against -- not only in the courts, but when it comes to writing cert petitions, which are done by the Solicitor General's office and the rest of the DOJ, who are the creme de la creme. Because they are excellent lawyers and know how to write cert petitions, a case that would ordinarily merit cert will, on balance, be more likely to get granted cert if the government appeals. An unclear cert petition from a pro se litigant or even a merely adequate lawyer, who fails to point out all the splits or explain why there are no other problems in granting cert (especially when the government, on the other side, will expertly explain why the case does _not_ merit cert), is less likely to get review granted.
12.7.2006 9:09am
blackdoggerel (mail):
DJR:

Could you identify some of those cases you claim presented "perfectly good splits without any real vehicle problems"? I find it hard to believe that the Court would simply refuse to take cases that pass its rigorous standards for cert. If you could point some of them out, it would be helpful.
12.7.2006 9:12am
elChato (mail):
blackdoggerel,

the quality of lawyering is a good point. I might also add that the federal government usually takes responsible positions with respect to interpretation of federal statutes, and doesn't often ask the courts to do something extravagant in its favor, at least compared to private litigants; the government doesn't have the same incentives in litigation. Thus we can expect the government to win more often, and to more often have a litigation position considered "right" by the courts.
12.7.2006 9:14am
lv (mail):
Why should the Supreme Court only take cases in which there's a circuit split? That wasn't always a threshold requirement for accepting cases, and, while it certainly helps to limit the pool, it assumes that the Court's only business is to create uniformity in federal law on important issues. What happened to making sure that individual rights are vindicated in egregious cases even when there isn't a circuit conflict? Enough already with the feitsh for circuit splits.
12.7.2006 9:47am
lv (mail):
fetish!
12.7.2006 9:52am
Archon (mail):
It's also worth noting that the Supreme Court has been holding up cert for a few cases that are closely related to other case which they are will hear this year.

Depending on the results of those cases, the Supreme Court could grant cert and issue a PC.
12.7.2006 10:12am
Archon (mail):
Also, I don't know why the Supreme Court has seemed to abandoned the practice of affimring with a short PC or affirming w/o opinion.

You would think the Court could stop circuit splits altogether by just taking a well reasoned Circuit Court opinion and affirming it w/o opinion or with a very short opinion. This would surely put an end to a lot of legal grey areas and stop needless ligitation designed to bring about circuit splits which then force the Court to eventually grant cert.
12.7.2006 10:23am
DJR:
Here are a couple. I have included the petitioners' counsel, who are all quite competent.

Pulliam v. U.S., No. 05-10687, split over a defendant's standing to object to an illegal vehicle search. (Federal Public Defender)

Qwest Communications v. New England Health Care Employees Pension Fund, No. 06-343, Split over selective waiver of privilege. (Boies Schiller)

Davis v. U.S., No. 06-160, split over whether the fruit of the poisonous tree doctrine trumps the good faith exception to the warrant requirement. (Tom Goldstein)
12.7.2006 10:26am
magoo (mail):
I've heard people say that when 3 vote to grant cert., a 4th will often join in just as a matter of "courtesy". Is there any truth to this, or is it urban legend?
12.7.2006 10:34am
andy (mail) (www):
"Qwest Communications v. New England Health Care Employees Pension Fund, No. 06-343, Split over selective waiver of privilege. (Boies Schiller) "

Yeah, that represented a gigantic split over the selective waiver doctrine, and was well-briefed. yet, the Court did not grant cert.

there should be a requirement that SCOTUS clerks have more in their backgrounds than 3 years of law school and 1 year of an appellate clerkship...seems like cases are picked because they are "interesting," and less so if they're important.
12.7.2006 10:47am
frankcross (mail):
This is a mystery.
The proffered explanations are unsupported. First, I haven't seen evidence that the government is in fact losing fewer cases below. Even if the rate were lower, there would still be hundreds of government losses that could be taken by the Court but are not.

And there are plenty of practically significant circuit splits that the Court passes by.
12.7.2006 10:50am
DJR:
Magoo, I think you are thinking of the former courtesy fifth vote for a stay of execution in a death penalty case. It takes four votes to grant cert., but five to grant a stay of execution. So if you had a death penalty appeal on the eve of execution that only four justices agreed to grant, the person would be executed because a cert. grant doesn't automatically get you a stay. As I recall, the former practice was that one of the conservative justices would vote for a stay so that the Court could hear the case. I believe when that justice left the Court another agreed to be the fifth vote, but when that justice left the bench none of the others took over. So today it practically takes five votes for a cert. grant in a death penalty case.

This is from memory; I could be wrong about the details.
12.7.2006 11:03am
DJR:
My personal theory is that the law clerks are too easily spooked by Respondents' assertions of vehicle problems. These come from several sources: 1) facts in the record that are not in the appellate decision; 2) Claims that the cases presenting the circuit split did not decide the issue that they clearly did decide; and my personal favorite, 3) court of appeals' decisions that imply but do not rely on alternative grounds for their decision, and that do not fully analyze the alternative ground.

It is a safer and easier to be overly credulous of respondents and recommend that cert. be denied than it is to investigate whether the asserted grounds for denial have any real basis.
12.7.2006 11:13am
CJColucci:
What mystifies me in this era of empty dockets is why the Supremes bother to take some of the cases they take. Recently, they took a case called Ash v. Tyson Foods to do nothing more useful than to scold the lower court for some exuberant language quoted from a prior circuit court opinion while pointing out that the quoted circuit court opinion said the same thing in more sedate language in another paragraph. And for this they granted cert., vacated, and remanded. Then they took the Burlington Northern case, which had come out right below (hence an affirmance), to "resolve" a circuit split that, again, seemd to be merely verbal rather than substantial. The verbal formulation they insisted on adopting had not led to different results in the circuits that used it, but now the other circuits are grappling with whether Burlington Northern means they have to do something different or merely talk differently. Idle hands are the devil's playground.
12.7.2006 11:34am
Dave Hardy (mail) (www):
On balance, the government usually has much better lawyers than the individuals they are squaring off against -- not only in the courts, but when it comes to writing cert petitions, which are done by the Solicitor General's office and the rest of the DOJ, who are the creme de la creme.

I'm sure that's a factor. The average private attorney rarely if ever does a cert. petititon. In 30 years, largely focusing on appeals, I've done two (one granted, one not). I know of no other attorney in town who has done any, other than the public defender's office. Match a skilled attorney who has never written a petition, against one who does that work 8 hours a day, and the latter will have a big advantage. Just realizing that on a petition you're not arguing the merits, but convincing the Court to take the case, isn't something the average attorney, however intelligent, would automatically think of.
12.7.2006 11:37am
magoo (mail):
DJR -- thanks for setting me straight.
12.7.2006 11:56am
anonVCfan:
DJR raises an interesting point, but why should that be more true this term than other terms? The arguments he highlights seem to be standard items in the respondent's toolbox.
12.7.2006 12:54pm
blackdoggerel (mail):
DJR:

I recognize at least one of the cases you (and another commenter) mention, Qwest Communications, because it deals with selective waiver of privilege, which comes up in my line of work (and, indeed, is a reasonably high-profile issue, at least for businesses).

But the Judicial Conference has published a proposed rule of evidence, Rule 502, dealing with this exact issue. In other words, the very problem that is the source of the supposed circuit split is about to be resolved through rulemaking. So why on earth would SCOTUS step in to address a question that could be moot any month now? Obviously SCOTUS was aware of the proposed rule -- after all, the Judicial Conference is the one who proposed it.

This one is such a no-brainer that it makes me skeptical of assertions that the other cases you propose in fact are free of vehicle or other problems hindering cert. And maybe that's why I'm equally skeptical of all the armchair Justices who claim SCOTUS is purposely, or at least suspiciously, failing to take cases.
12.7.2006 2:14pm
andy (mail) (www):
"But the Judicial Conference has published a proposed rule of evidence, Rule 502, dealing with this exact issue."

Fair enough. But the fact that the JC proposes a rule doesn't mean much to me. It's not like the courts stopped hearing privilege cases during the last time it proposed a bunch of rules (1970-something?).

And many of the issues the Court decides are "dead." Around 70% of tax cases, for example, examine statutes that have already been amended by Congress to address the holdings of the lower court opinions that led up to the Supreme Court opinions. That a particular codification might just possibly be passed if perhaps someone gets around to maybe doing something doesn't strike me as a good reason for the Court to deny cert.
12.7.2006 2:33pm
andy (mail) (www):
"SCOTUS is purposely, or at least suspiciously, failing to take cases."

and i certainly wouldn't suggest that the Justices are acting in bad faith. it's just that, as a matter of fact, some things strike the doe-eyed clerks as more appealing than others, and that influences the cert process. see Judicial Conference of the Second Circuit of the United States, 160 F.R.D. 287, 375 (1994) (comments by Justice Clarence Thomas) (describing a category of cases in which certiorari is granted as "this looks interesting," usually involving First Amendment and religion) (as described in 100 Colum. L. Rev. 1643).

I don't know, but if someone familiar with the Cert process- i.e. Justice Thomas-- says that cases are granted because they look "interesting," I'm inclined to think that the Court isn't necessarily inclined to address the really hard legal issues in e.g. the tax or ERISA world, but is instead just content to let the lower courts decide those cases and instead focus on the fluffy conlaw cases. I don't necessarily blame them-- i certainly would not want to write 50 page opinions on things that bore me-- but an empty docket in light of so many critical/confused legal issues out there strikes me as an abdication of duty. But, I have no first-hand knowledge and admit that I'm playing a guessing game, but the circumstantial evidence does seem troubling.
12.7.2006 2:41pm
David Stras:
Frank and Orin,

I am currently working on an empirical piece examining the reasons behind the shrinking docket and a potential solution to it. Although I do not want to release my results before I can statistically verify them, I would suggest that the reasons are not necessarily obvious and, if history is any indicator, the problem is likely to get worse before it gets better. Perhaps Congressional action is called for?
12.7.2006 3:05pm
blackdoggerel (mail):
"Perhaps Congressional action is called for?"

There is -- it's called Chief Justice Roberts going to the appropriations committee and asking for money. I wouldn't put it past most congresspersons, who are generally morons, to think that fewer cases = less work = less money necessary to give to the Supreme Court come budget time. Most congresspersons probably have some axe to grind with the Supreme Court anyway, since they each can point to some decision they disagree with on a laughably facile basis. So it wouldn't take much more for them to gladly apportion less money than the Court would like (or need), and this gives them a good excuse. Which is another reason why I don't think the Court would ever take fewer cases than it would feel comfortable taking, from a public relations standpoint.
12.7.2006 4:04pm
jgshapiro (mail):
Wasn't the point of eliminating most of the mandatory appellate jurisdiction of the Supreme Court (vs. the voluntary certiorari jurisdiction) so that the Court could focus on cases it thought were worthy of its time? At the time, as I recall, it was hearing hundreds of cases a year (certainly well over 100).

If the justices refuse to take a full load of cases on certiorari (whatever a full load is), one solution would be to bring back appellate jurisdiction. After all, they have the time.
12.7.2006 5:21pm
Waldensian (mail):

there should be a requirement that SCOTUS clerks have more in their backgrounds than 3 years of law school and 1 year of an appellate clerkship...seems like cases are picked because they are "interesting," and less so if they're important.

It's not unheard of for a Justice to hire a clerk who has worked a "real job" in the law biz. For example, Justice Thomas hired John Adams, who was previously an associate with Hunton &Williams.

Come to think of it, I wonder if any of the Js would be interested in a 40-year-old burned-out big-firm partner?
12.7.2006 10:57pm
DJR:
And I understand that Justice Kennedy hired a law professor, of all things, a few years ago.
12.8.2006 8:10am
anonVCfan:
David Post, occasional VC blogger, spent a bit of time in the "real world" before being hired as a Supreme Court clerk.
12.11.2006 3:04pm