The Shrinking Supreme Court Docket

In 2006, the U.S. Supreme Court issued decisions on only 69 cases –the smallest number since before the Civil War. In the 1980’s, it was common for the Court to produce decisions on approximately 150 cases each year. In the early 1990’s, the number was still well over 100 cases — 117 decisions were produced in 1991.

During 2005 Senate confirmation hearings, Chief Justice John Roberts said he would work to increase docket size — but the exact opposite happened. Obtaining certiorari has always been a difficult task. Now it is not only harder for litigants trying to get final resolution of their disputes.
The number of requests for Supreme Court review has not declined. At present, the Court receives more than 8,000 petitions for review, but chooses fewer than 70 for briefing and oral argument. This causes problems in cases turning on issues on which the lower courts are sharply divided.

There are several possible reasons for the Supreme Court’s decreased caseload. First, the Justices may want to take fewer cases and work harder on them. It is true that the average number of pages per decision has increased to 100 pages. However, longer Court opinions are not necessarily better than shorter ones.

Second, the U.S. government is seeking Supreme Court review in fewer cases. Throughout the 1980’s, the U.S. Solicitor General’s office sought certiorari for about 50 cases a year. Now, it is requesting review of only about 10 cases a year. Because the Solicitor General’s office has substantial influence on the Court’s willingness to grant certiorari, this could contribute to the decline in its docket.

Third, the Justices themselves may be employing more strategic voting tactics. While it only requires four Justices to grant certiorari, any four may be reluctant to grant review, unless they are confident of receiving a fifth vote on the final decision.

Next, the use of the “cert pool” could be reducing the Court docket. Eight out of the nine Justices have agreed that one law clerk will read each case and prepare a memorandum summarizing reasons to either grant or deny certiorari. It has been suggested that law clerks feel pressured to advise against certiorari, because the Justices are more likely to accept this recommendation.

Lastly, a worthy explanation is that the lower federal courts and the Supreme Court have become ideologically similar. Majorities of both the Supreme Court and most federal Courts of Appeals have been appointed by Republican Presidents and tend to be conservative. Because these lower federal courts and the Supreme Court generally agree with each other, the latter may feel more comfortable accepting fewer cases.

Unfortunately, the Court never really explains its reasoning for declining a particular case — it usually provides a one-sentence order denying review.

However, as the Supreme Court keeps reducing its own workload, it continues to leave important legal questions unresolved.