Goldstein on the Current Court and the Supreme Court's Docket:
Over at SCOTUSblog, Tommy Goldstein makes some very thoughtful points about the the previous and upcoming Supreme Court Terms. In particular, he makes some quite perceptive comments about the presently fashionable claim that we now have a consistently conservative Court:
  [T]he characterization of this Court is part caricature and is deeply dependent on the near-accident of the particular cases that are decided in any given Term. Although the era in which true liberalism was an ideological force on the Court (e.g., Brennan, Marshall, and Douglas) is now over, this is manifestly not a period of conservative hegemony. Like Justice O'Connor, Justice Kennedy's commitment to any ideological world view is too fragile for either wing of the Court to have genuine confidence in the outcome of an entire Term's worth of cases. And moreover, many important cases are not decided on ideological grounds or by five to four majorities.
  . . . I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal. As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly conservative, with laudatory commentary by the right and howls of protest from the left. Instead, we will see (mistaken) talk of the "surprising" tack by the Court back to the left and (among the legal glitterati) the "good Kennedy, bad Kennedy" phenomenon in which his ideological views seemingly oscillate dramatically from Term to Term. In fact, this commentary will be wrong: the Justices and their views will be exactly the same come June 2008; it is the cases that will be different.
  I think Tommy is exactly right. The key driving the current Court is its cert practices: How the Court goes depends on which cases the Court takes. In the Warren Court era, the Justices looked for cases that would help them move the law where they wanted. The Warren Court took lots of cases, and they used those cases to change a lot of law. They didn't need splits, or in some cases even a relevant decision below.

  Today the picture is quite different. Today the Justices are focused heavily on lower court splits; they appear to see their primary role as resolving lower court uncertainty on legal questions that have spent a lot of time percolating below. This means that the Supreme Court's docket is actually set mostly by lower court judges rather than coalitions of the Justices. Lower courts decide whether to create a split, and that split is what prompts Supreme Court attention. (If you're thinking that might create room for some tactical split-creation below, well, yes it does.) As a result, the direction of the Court is defined by where the Justices are on the specific issues where the lower courts divide. This tends to lead to a much smaller docket as well as much less predictable trends in the direction of caselaw from year to year.