Supreme Court busy looking for cases — but finding fewer than usual

The Supreme Court can focus like a laser on the cases it is scheduled to hear during the last week of February and the first week of March.

There won’t be much competition for the justices’ attention.

Instead of the usual 12 cases that the court has been hearing in recent years during its two-week block of oral arguments, the justices have only seven scheduled for what the court calls the February sitting.

It’s the result of a diminished docket at the court, one with the potential of a historic low. So far, the justices have found fewer cases than usual worthy of receiving full briefing and oral argument.

According to Scotusblog, the independent Web site that tracks the court’s proceedings, the justices are about 10 cases shortof what they normally would have taken at this point of the term.

The court has almost total discretion over its docket and accepts about 1 percent of the petitions its receives. At least four of the nine justices must agree to take a case, and attorneys, law professors and legal experts love to speculate on why the court takes so few.

There’s the view that the law clerks who review the petitions are reluctant to suggest their bosses take a case, for fear the case might not turn out to be a good vehicle. There is a theory that the court’s deep ideological divide makes agreement difficult, or that the lack of major legislation from Congress gives the court less to interpret.

But some things simply haven’t worked out the way the justices planned. For instance, the court decided to examine Oklahoma’s new abortion restrictions. But first it asked for clarification from the state’s highest court on the breadth of Oklahoma’s law restricting drug-induced abortions.

When the state court said that the law would virtually eliminate all nonsurgical abortions, the Supreme Court simply let stand the lower court’s decision that it was unconstitutional. There was no explanation, but the justices apparently were looking for an opportunity to decide the more narrow issue on when the drugs could be prescribed.

Another case — on a fundamental civil rights rule that a public policy may be found discriminatory because of its results, rather than any biased intent — was scuttled when the lawsuit was settled just before oral arguments.

The court got rid of one case after it became clear during oral arguments that it had fundamental flaws that prevented the justices from deciding the broader issues at hand.

Justice Antonin Scalia scolded one of the lawyers in the age-discrimination case for not doing of better job of telling the court all the reasons “why we shouldn’t have taken it in the first place.”

In the parlance of the court, the case was DIGged — “dismissed as improvidently granted.”

The justices have decided only one case this term — there will be at least one more ruling coming Tuesday — but they have been busy writing about the cases they are not taking.

It is rare for the court to give a reason for passing up a case. But justices this term have already explained their thinking or protested their colleagues’ decisions seven times. As Tony Mauro pointed out in the National Law Journal, there were only nine such explanations in the last term.

Justice Samuel A. Alito Jr., who historically has been the only justice to have his clerks read all the petitions rather than joining the pool of clerks his colleagues have formed, has been the most vocal. He has twice said that the court should have taken cases in which he felt lower courts had given a criminal defendant unlawful additional hearings. He was joined by Scalia.

And Alito sent a pointed message to a federal district judge who had a practice of trying to require that lawyers in class-action suits reflect the race and gender metrics of the clients.

Alito said the “uniqueness” of the requirements imposed by U.S. District Judge Harold Baer Jr. of New York counseled against taking the case. But he made it clear that he was issuing a warning.

“If the challenged appointment practice continues and is not addressed by the Court of Appeals, future review may be warranted,” Alito wrote.

Chief Justice John G. Roberts Jr. recently used the format to signal he is interested in the issue of “cy pres” class-action settlements. Those are settlements in which it is too hard to devise a monetary reward for the plaintiffs, so the settlement goes to a third party or charity or to establish some other remedy.

Roberts said he agreed with his colleagues that the case before them, which involved Facebook, was too specific to get to broader questions, “including when, if ever, such relief should be considered.” His opinion made it clear that he thought such as examination was needed.

And Justice Sonia Sotomayor protested the court’s decisionnot to accept a challenge to Alabama’s death penalty process, one of the few in the country where a judge may overrule a jury’s recommendation that the convicted be given life in prison without parole instead of executed. She was joined by Justice Stephen G. Breyer but not the court’s other liberals, Justices Ruth Bader Ginsburg and Elena Kagan.

The votes of the four would have been enough to take the case. Perhaps it was a sign they did not believe there was a fifth vote to actually make a change.

Thomas C. Goldstein, the founder of Scotusblog and a lawyer who practices before the court, watches the list of petitions to the court as closely as anyone. All lawyers, he said, believe the court should accept more cases.

But he said it is clear from the cases that the justices pass up that if they “decide something’s not a good vehicle, they are not going to relax their standards” just because the docket is less than full.

The public is not likely to notice. The court still has cases this term that touch on controversial issues — affirmative action, campaign finance, public prayer and the Obama administration’s requirement of contraceptive coverage in insurance plans.

And Roberts always says that only a handful of the court’s cases every term really break through to the public anyway. For such cases, he uses a nostalgic term that appeals to some who cover the court: “front page stories.”

For more High Court columns, visit washingtonpost.com/fedpage.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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