Justices Continue Trend of Hearing Fewer Cases

By Robert Barnes
Washington Post Staff Writer
Sunday, January 7, 2007

Only a handful of decisions each year define the Supreme Court for the American public, and that might be especially appropriate this year.

After decades of decline in its caseload, the court is once again on track to take its fewest number of cases in modern history. The justices went on a relative shopping spree when they returned from their holiday break, on Friday, agreeing to hear seven additional cases before this year's term ends. Before that they had accepted only 60 petitions, as opposed to 80 at this point last year.

Even a caseload in the 80s would have been considered extraordinarily skimpy 20 years ago. In William H. Rehnquist's first term as chief justice in 1986, the court disposed of 175 cases. That had dwindled to 82 cases last year after Chief Justice John G. Roberts Jr. took over.

Roberts himself said during his 2005 confirmation hearings that the court should be doing more.

"They hear about half the number of cases they did 25 years ago," Roberts testified. "There may be good reasons for that that I'll learn if I am confirmed. But just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases."

What Roberts has discovered is unclear. The process by which the nine justices decide which of the thousands of appeals they receive each year will be given the justices' full consideration -- granted certiorari, in the court's terminology -- is among the court's most closely guarded procedures. But the chief justice's role is limited.

"When it comes to certiorari, the chief justice only has one vote like everyone else," said University of Minnesota law professor David Stras, who has conducted extensive research into the process. It takes four votes of the nine to accept a case.

There is one reason for the decline from the heavy workloads of the 1980s that everyone agrees on: A 1988 congressional decision made at the court's behest eliminated a number of mandatory appeals, leaving the justices to pretty much set their own agenda.

Beyond that, theories abound. Stras said he thinks it is as simple as a change in personnel. His research shows former Justices Byron R. White and Harry A. Blackmun, who left the court in 1993 and 1994, respectively, were much more likely to grant certiorari -- or "cert" -- than their contemporaries.

He said his studies of Blackmun's papers, which detail cert grants, suggest that the downward trend could continue if Justice John Paul Stevens, 86, is the next to leave. Stevens also was above average in voting to take cases, he said.

Others say that an increasingly homogenous appellate judiciary appointed by Republican administrations is producing fewer conflicting opinions among circuits, a chief characteristic of the kinds of cases the justices like to take. Or that the federal government, usually the most persuasive in convincing the court that an issue is ripe for review, is losing less often at the lower levels and not appealing as many cases.

Some blame the so-called "cert pool," the practice by which eight justices -- Stevens is the exception -- combine their clerks to review the thousands of petitions. One clerk then makes an initial recommendation on a case, with the justices having the final say. No one really knows what the recommendations are, but the theory is that it might be safer for a relatively inexperienced clerk to recommend denial rather than a grant.

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