Numbers That Don't Befit the Court

By Margaret Cordray and Richard Cordray
Tuesday, July 11, 2006

Each June, as its term ends, the Supreme Court issues blockbuster opinions in highly sensitive, politically controversial cases. These decisions dominate the headlines, and in their wake the country debates whether the Supreme Court is too active. But this flurry masks a surprising trend at the court: It is, in fact, accepting fewer cases each term and deciding as little as possible in many of them. This newfound modesty results in significantly less guidance to the lower courts.

During the term just concluded, the court issued a grand total of 71 plenary decisions (in cases with full argument) -- its lowest output since the Civil War. This continues a steady decline that has been underway since 1990. Over the past decade, the court has decided only half the number of cases each term that it decided in the 1970s and '80s, when it regularly issued about 150 decisions per term. That is so even though thousands more cases are being filed.

At the same time the Supreme Court is doing less with more, the new chief justice and many commentators are calling upon the court to decide as little as possible in those few cases it does have before it for full review. In a law school commencement address, Chief Justice John Roberts stated: "If it is not necessary to decide more to dispose of a case, then in my view it is necessary not to decide more." He suggested that such restraint would foster consensus, commenting that "the broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible grounds."

But if the court is deciding considerably fewer cases, and if it is determined to settle as little controversy as possible in each case, then it is exerting only the most minimal supervisory control over the lower courts. Rather than "one supreme Court" being in charge of the judicial branch, as the Constitution provides, the hundreds of lower court appellate judges and thousands of lower court trial judges are increasingly on their own to do as they see fit in broad areas of commercial, criminal and constitutional law. Perhaps some would applaud the resulting decentralization of our judiciary, but it is dramatically inconsistent with any recognizable notion of judicial hierarchy.

Changes in the Supreme Court's docket are rarely undertaken with conscious intent, and they tend, above all, to result from changes in personnel. The court's rulings on applications for review are made in secret, establish no precedent and occur with almost no collegial deliberation. As a result, the justices' decision making about whether to grant review in individual cases is highly atomistic, and, after the votes have been cast and tallied, the overall pattern of the court's docket often comes as a surprise even to the justices themselves.

These matters are too important to leave to happenstance. The justices need to engage in a more self-conscious reflection and discussion about whether the shape of their docket is what it should be to govern the complex legal affairs of this large and diverse nation. For more than a century, the court successfully fought for unfettered control of its own docket, and with rare exceptions the justices now determine not only which but how many cases they will decide each term. As cases continue to flood the already swollen dockets of the lower federal and state courts, the justices need to question whether they have become too stingy in exercising their discretion to grant review.

The justices as a body should frankly consider whether 71 plenary decisions in a given year are really enough to carry out the court's constitutional function of ensuring the supremacy and uniformity of federal law. Reasonable people differ over whether the court takes too many blockbuster cases or decides too much in those cases. Regardless, there is surely scope for the justices to provide useful guidance to lower court judges in many of the less sexy cases it increasingly turns away. Remarkably, the court is on track to hear even fewer cases next term. But if the justices choose to do so, it is within their power to change course.

Margaret Cordray is a professor at Capital University Law School. Richard Cordray clerked for Justices Byron R. White and Anthony M. Kennedy.

© 2006 The Washington Post Company