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.
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.