Justice John Paul Stevens yesterday resumed his off-the-bench campaign to reduce the Supreme Court's record caseload, suggesting a re-examination of the time-honored rule that requires granting review in a case on the votes of four of the nine justices.
Stevens suggested that increasing the number of justices required to grant review could reduce the number of cases heard each year between 23 and 30 percent at a time when the court "takes far too many cases."
He backed up his speech with another unusual glimpse at the court's inner workings. He listed by name 36 cases from the court's 1979 term in which only four justices wanted full review. Included were a case on the constitutionality of sex-biased statutory rape laws (Michael M. vs. Superior Court of Sonoma County), the major case concerning the patentability of the products of genetic engineering (Diamond vs. Chakrabarty) and a case dramatically enlarging the grounds for suing states under federal civil rights law (Maine vs. Thiboutot).
The votes in conference on which cases to take are generally secret.
Stevens made his comments in a speech released yesterday but delivered Wednesday night at the New York University Law School. An August speech by Stevens to the American Bar Association began an extraordinary public debate among the justices about the quality of the court's product, its caseload and the burden on the entire federal judiciary.
Stevens said the "rule of four" has been in operation at least since 1925, defended on the grounds that it benefits the unpopular litigant or unpopular issue and that if four justices of the Supreme Court think a case is important, it must be important.
"Every case that is granted on the basis of four votes is a case that five members of the court thought should not be granted," he said. "For the most significant work of the court, it is assumed that the collective judgment of its majority is more reliable than the views of the minority."
Stevens said four or fewer affirmative votes resulted in granting more than 23 percent of the petitions accepted in the 1979 term, more than 30 percent of those granted in the 1980 term, and about 29 percent of those granted in the 1981 term. The court generally grants about 150 cases each term.
"I am convinced that a careful study of all of the cases that have been granted on the basis of only four votes would indicate that in a surprisingly large number, the law would have fared just as well if the decision of the court of appeals or the state court had been allowed to stand," Stevens said.