Justices Continue Trend of Hearing Fewer Cases

Others wonder whether the new -- with the addition of Roberts and Justice Samuel A. Alito Jr. -- and philosophically divided court is overly cautious. That theory is that justices would withhold their vote to take a case unless they could be sure their "side" would prevail.

All those theories for the falling number of cases have detractors, especially the last one. While the court's 5 to 4 decisions in controversial cases get all the attention, the vast majority of the court's work is more mundane -- tomorrow's oral arguments consist of a tax case from Guam and a trash-hauling dispute -- and more likely to be decided in unanimous or near-unanimous decisions.

Those most familiar with the court say the docket is always part happenstance, based on the cases made available. For the most part, "they're not working as a unit" deciding what areas of the law need attention, said Margaret M. Cordray, who teaches a seminar on the court at Capital University Law School in Ohio. "They operate very independently on the question of cert."

Cordray and her husband, Richard Cordray, who clerked for White and Justice Anthony M. Kennedy, wrote an op-ed piece last summer in The Washington Post criticizing the court for being so stingy in granting petitions. "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," they wrote.

Cordray said she believes the court could take on 100 to 130 cases, although she agrees there is no magic number on what the court should accept.

Thomas C. Goldstein, a Supreme Court practitioner at Akin Gump Hauer & Feld who instigated a lively debate in legal circles when he wrote about the issue on Scotusblog.com, acknowledged that the shrinking docket has been evolving for years.

"But this is different," he said. "They were sliding down a hill, and this year they fell off the cliff."

Five days of oral arguments are customarily set aside in February, and justices this year filled them only by scheduling just one case on three of those days. The court usually hears two per day and in the past has heard as many as four. Justices canceled one day set aside for hearings in December and are expediting some cases to fill their March calendar.

Margaret Cordray, Goldstein and others do not buy the argument that there are not enough conflicts out there for the court to resolve. Goldstein said there are still plenty of splits among the lower courts that the high court could accept, and Cordray wants the court to take on more cases that would give guidance to the lower courts on matters that are not necessarily high in profile.

While the declining caseload at the nation's most visible court could create a small public-relations problem -- Roberts and other justices are actively advocating a major pay increase for the judiciary -- the court in the end will still be judged by the controversial cases it decides, rather than the number.

The court will make major decisions this term on abortion, the use of race in school admissions, and employment discrimination. Also, it has an emerging number of environmental cases, including the justices' first consideration of the issue of global warming.