Caseload Reflects Court's Altered Role

The Supreme Court justices are on their four-week winter recess, the annual intermission during which members occasionally accept short-term teaching assignments at law schools in such locales as Arizona or Hawaii.

What better time to examine the court's workload -- or lack thereof?

Actually, no one familiar with the court suggests that the justices aren't working hard; if anything, they are more active at oral argument, and write more and longer opinions, than past court members.

Rather, the question is the number of cases to which their efforts are applied. The Supreme Court decides far fewer cases now than it did in the relatively recent past.

In October Term 2002, which ended in June 2003, the court decided 73 cases after hearing oral argument. The court is on course this term to exceed that total. But it will still come nowhere near the 107 cases heard and argued in the 1992-93 term -- much less the total of 176 reached in 1976-77, a typical term for its era.

In a recent American Lawyer essay (from which the above figures are drawn), former deputy solicitor general Philip Allen Lacovara calls this "a shockingly low performance record," and urges the court to pick up the pace.

To be sure, perhaps as much as a fifth of the decline in the court's workload is due to the fact that it is no longer required by law to hear as many cases as it once was.

In 1988, Congress repealed statutes that had required the court to hear appeals in certain kinds of cases, such as those in which federal appeals courts declared state laws unconstitutional.

Now, it's entirely up to the court to set its own agenda -- which, Chief Justice William H. Rehnquist noted with approval in 1993, has changed the court from "an error-correcting court of general appellate jurisdiction to a court whose special concerns are constitutional interpretation and significant questions of federal law."

And no doubt lawyers practicing at firms with sizable Supreme Court practices would benefit directly if the justices heard more cases.

Still, the statistics are striking.

Even after the 1988 law, the number of appeals on the court's "paid docket" -- petitions for writs of certiorari filed by businesses, public interest groups or individuals who can afford to pay a standard $300 fee -- has remained constant since 1976; there were about 2,200 last year.

The volume of unpaid petitions has indeed mushroomed, from 4,700 in 1976-77 to about twice that last term. But this is not a reliable indicator of the court's workload, Lacovara notes, because most of them are long-shot criminal appeals rejected after a brief review, usually by a single law clerk.

In any case, the court has much more help to deal with the paper flow than it used to. Each justice now has four law clerks per term, as opposed to two in earlier times. (Rehnquist has three clerks; Justice John Paul Stevens used three until this term.)

Why, then, does the court take so many fewer cases?

"Twenty-five or a hundred years ago, the court said 'Our job is to establish uniformity of federal law,' " Lacovara said in an interview. "Now, it's 'We'll decide cases when we really have to and decide them when they'll make front page.' "

Another issue is the "cert pool," the mechanism by which the modern court deals with the mountain of petitions for certiorari. One law clerk writes a memo, circulated to eight of the justices (only Stevens has his clerks review all petitions separately), recommending whether to grant or deny each petition. Fear of picking the "wrong" case to grant, and thus being blamed for wasting the justices' time, makes "deny" the safest course.

"That pressure is now greater," says Charles Cooper, a Supreme Court practitioner and former Rehnquist clerk. "It is real. You want to be on target."

Finally, Lacovara said, there are fewer momentous issues being generated. Whereas the turmoil of the 1960s and 1970s generated a huge volume of constitutional litigation -- as well as new federal laws that courts had to interpret -- "the big issues that arose from Great Society programs have been generally resolved," he said.

The 1990 Americans with Disabilities Act, which has generated a steady stream of new cases in the lower courts and, consequently, at the Supreme Court, is an obvious exception. But even on the ADA, the court often permits disagreements between the appeals courts to persist longer than it might have in the past.

Justices sometimes refer to this as letting issues "percolate," to get the benefit of several courts' views before weighing in themselves. But, to some lawyers, this has the unfortunate side effect of letting different regions of the country live under different interpretations of federal law while unresolved "circuit splits" persist.

"In some criminal cases they needn't wait for conflicts to develop because people are going to prison in the meantime," says Carter G. Phillips, a Supreme Court practitioner and former clerk to Chief Justice Warren E. Burger.