Show Justices continue trend of hearing fewer cases Robert Barnes The Washington Post Only a handful of decisions each year define the Supreme Court for forthe forthe forthe the American public and that might be especially appropriate this year After decades of deel decline ne nein in its caseload the court is once again on track to take its fewest number of cases in modem 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 years year's term ends Before that they had h d accepted only 6 60 petitions as opposed to 80 at this point last year Even a caseload in the would have been heen considered extraordinarily skimpy 20 years ago In William H. H first tern term as chief justice in 1986 the court disposed of cases That had dwindled to 82 cases last year after Chief Justice John G. G Roberts Jr took over Roberts himself said during his 2005 confirmation hearings that the court should be doing more l They hear about half the number of cases they did 25 years ago Roberts testified There may be good reasons for that that Ill I'll learn leam 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' justices granted consideration full certiorari in the courts court's terminology is among the courts court's most closely guarded procedures But the chief justices justice's role is limited When it comes to certiorari the chief justice only has one vote like everyone else said University of Minnesota la law professor David who has conducted ext research into the thel process It takes four votes of the thc nine to accept a case There is one reason for forthe forthe forthe the decline from the heavy workloads wo of the that everyone agrees on onA A 1988 congressional decision I ma made e at the courts court's behest eliminated a number of mandatory appeals leaving the the justices justices to pretty much set their own agenda Beyond that theories abound said he thinks it is as simple as a change in personnel His research shows former Justices Byron R. R White and Harry A. A Blackmun who left the court in 1993 and 1994 respectively were much more likely to or certiorari cert cell grant than their contemporaries He said his studies of Blackmun's papers which detail cert cell 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 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 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- so called cert pool the practice by which eight justices Stevens justices Stevens is the ex exception c ept i com on combine b ine their clerks to review the thousands of petitions One clerk then makes an initial recommendation ona ona on ona a case with the justices having the final say No Noone Noone Noone 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 thana thaira grant Others wonder whether the new with new with the addition of Roberts and Justice Samuel A. A Alito 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 forthe forthe for forthe the falling number of cases have detractors especially the last one While the courts court's 5 to 4 decisions in controversial cases get all the attention the vast majority of the courts court's work is more mundane mundane- this weeks week's oral arguments consist of a tax case from Guam and a trash-hauling trash dispute and more likely to tobe tobe tobe be decided in unanimous or unanimous 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 not working as a unit deciding what areas of the law need attention said Margaret M. 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 M. Kennedy wrote an op op- ed piece last summer inThe in inThe inThe The Washington Post criticizing the court for being so stingy in granting petitions The justices need to engage in a more self-conscious self reflection and discussion about whether the shape of their docket is what it should be to govern the complex leg legal l affairs of this large and diverse nation they wrote Cordray said she believes the court could take on to cases although she agrees there is no magic number on what the court should accept Thomas C. 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 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 day of oral arguments are customarily set aside in February F and justices this year filled them only by scheduling just one 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 donot donot donot 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 nations nation's most visible court could create a small public- public relations problem problem- Roberts and other justi justices es are actively advocating a major pay increase forthe for forthe forthe the the judiciary court in inthe inthe inthe the end will still be judged by the controversial cases it decides rather than the number The court will make major decisions this termon termon term terin on abortion the use of race in school admissions and employment discrimination Also it has an emerging number of environmental cases including the justices' justices first consideration of the issue of global warning |