The ways in which Justice Antonin Scalia’s sudden death are altering the current Supreme Court term have been widely chronicled.
But it appears the absence of Scalia will be felt on the court’s work next term, as well.
The number of cases the justices have accepted has fallen, meaning that a docket that in recent years has been smaller than what is traditional is shrinking still.
The court has accepted only six cases since Scalia died Feb. 13. The number is low compared with the average, Scotusblog.com editor Amy Howe said at an event last week reviewing the Supreme Court’s work.
And none of the cases that the court has accepted for the term that begins in October approach the level of controversy that have marked the dramatic rulings of recent years.
A panel of court experts assembled by the Constitutional Accountability Center last week offered a number of reasons for the reduced workload.
But they boiled down to a reluctance of the ideologically divided eight-member court to take on an issue in which it might not be able to provide a clear answer.
First, a reminder of the enormous leeway the justices have in setting their agenda.
An outraged citizen’s vow to fight an injustice “all the way to the Supreme Court” comes to pass only if the Supreme Court consents.
With a few exceptions of cases the court is mandated to consider, justices are unencumbered as they cull through the thousands of petitions seeking review. In recent years, only about 70 or so cases receive writs of certiorari — “cert grants”— signaling that the justices will review the decision of the lower court.
It takes the approval of four justices to schedule a case for full briefing and oral argument. The court makes those decisions all year — it could announce on Monday that it has accepted more cases — but generally those granted after January are placed on the court’s docket for the term that begins the following October.
So there is plenty of time for the court to pick up the pace. But based on what’s in the pipeline, Howe suggested that there could be plenty of lulls in the court’s schedule.
If Senate Republicans hold true to their pledge not to hold hearings or a vote on President Obama’s nomination of U.S. Circuit Judge Merrick Garland to fill Scalia’s seat before the election, the court will enter the next term one justice down. And if a lame-duck Senate after the election does not consider him, it would be sometime in the spring, at the earliest, before the court is back to full strength.
John P. Elwood, a Washington lawyer and Supreme Court specialist, said “having an extra member matters.”
He watches the Supreme Court’s docket as closely as anyone, writing a column for Scotusblog about the cases the court considers at its private conferences and which seem likely to be granted.
He said there seem to be a number of “defensive denials,” meaning neither side of the ideologically split court wants to take some cases because of uncertainty about how it will turn out, or whether the court will be able to reach a decision.
“The court already is a defensive enough institution,” Elwood said. He said that Justices Clarence Thomas and Stephen G. Breyer have noted that the court is cautious about granting cert in the best of times.
They “have said essentially, ‘You can’t screw up by not taking a case, you can only screw up by taking a case,’ ” Elwood said. “And now there’s one more reason not to take a case: that the court may blow up and not be able to decide the thing.”
Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, said the apparent slowdown is another consequence of waiting to fill Scalia’s seat.
It is a rebuttal to “all of these sanguine statements that we can have eight justices and it just doesn’t matter, we’ll just kick the can down the road,” she said.
Ifill often disagrees with the decisions of the conservative court but said that everyone agrees “this is a branch of government that actually gets the job done.” She added: “I think the court is trying to be prudent and not be a participant in its own demise by not taking these cases it can’t decide.”
Brianne J. Gorod, the Constitutional Accountability Center’s chief counsel, said justices “know that if the issue is an important one it will probably come back in a year or two, when hopefully there will be a ninth justice.”
Andrew J. Pincus, another Washington lawyer who practices before the court, agreed with this analysis but said it is the wrong approach for the court to take.
“This sounds a little self-interested,” Pincus began, but he said the court has a “wrongheaded view” about the frequency with which issues appear before it, and a “complete misperception of the real world impact of lower-court decisions that are out there for a long time that people in the real world have to comply with.”
But if it is easy to detect a slowdown in the court’s grants, it is more difficult to identify which cases the court might have taken if at full strength.
The court makes those decisions in secret. No vote total is announced and rarely is an explanation given.
So there can only be speculation about which cases are skipped because the court is divided, or which the justices agreed the lower court got it right and there is no work for them to do.