Today’s Supreme Court grants cert. in about half as many cases as it did in the 1980s. In his Sidebar piece, Adam Liptak of The New York Times attempts to explain this mysterious shrinking docket. Among the proffered explanations: Justices Ginsburg, Thomas, and Souter agree to hear far fewer cases than their predecessors, Justices White, Marshall, and Brennan; the growth of the controversial cert. pool practice in the early 1990s gives more power to younger law clerks who “seek out and destroy undeserving petitionsâ€; and the Solicitor General’s office, normally very persuasive in asking the Court to review a case, has been submitting approximately half as many requests in recent years. Of course, opinions differ as to whether the Court is shirking its duty to decide tough constitutional questions or properly deferring to lower courts and the legislature.
The American Constitution Society issued a preview of Maryland v. Shatzer, an upcoming Miranda-rights case. Police interrogated respondent Shatzer nineteen months apart about two different crimes. The first time, he was read his rights and asked for and received an attorney; the second time, he was read his rights, but a different detective continued to interrogate Shatzer, who ultimately confessed. At issue in this case is whether the considerable length of time between interrogations affects the principle that a confession elicited in spite of a suspect’s request for representation is inadmissible in court. Oral arguments are scheduled for October 5, 2009.
The WSJ Law Blog posts a convenient “Pocket Docket†preview of the upcoming Supreme Court term. The entry discusses the evolution of the Court’s ideological blocs in the wake of the appointment of Justice Sotomayor. Though the Court’s liberals in recent terms have voted together fairly regularly, argues the author, the conservatives have “often failed to agree on the reasoning behind a shared outcome†and, in issuing separate concurring opinions, “stop short of fully overruling prior decisions the four liberals fought to preserve.â€Â The entry highlights several cases from this term in which the conservative bloc may issue opinions more in step with one another.
An online point-counterpoint ensued yesterday over David Strauss’s recently published paper on the “modernization†of the Supreme Court. The University of Chicago law professor argues that the modern Court is more attuned than ever to public opinion and is “prepared to give way if it learns that it has misgauged [it].â€Â Strauss notes that modernization may better reconcile the judiciary with democracy, but that too much deference to popular opinion may erode “a principled judicial role.â€
In his critique of Professor Strauss’s article posted on the University of Chicago Law Review blog, Professor Jonathan Mitchell argues that Strauss “overstates the Supreme Court’s willingness and ability to accommodate the future public opinion at the expense of judicial preferences.â€Â Mitchell describes a more interactive relationship between a modernizing Court and public opinion and asserts that the principles set forth by the former play an equally significant role in shaping the latter. He also worries that a Court too concerned with public opinion will struggle to uphold the Constitution’s checks that “protect political minorities from national-majority rule.â€
Finally, Professor Strauss posted a response to Mitchell’s critique, also on the Chicago Law Review blog. In his follow-up, Strauss writes that the Court “treats trends in public opinion roughly in the way common law treats precedents†and argues that public opinion is but one of several barometers the Court might use in issuing decisions and shaping public policy. Strauss also disputes Mitchell’s contention that modernization threatens the “rule of law,†describing situations in which public opinion pushes the Court to overrule previous social mores. He cites the Brown v. Board of Education decision as an example of a modernizing Court incorporating changing social values that might be at odds with previous judicial interpretations of the law.
The LA Times profiles a new pro-life movement underway in California to amend the state Constitution to declare that personhood begins at conception. Justice Blackmun’s majority decision in Roe v. Wade was based on his contention that a fetus is not legally a person. Anti-abortion activists hope to attack the Roe decision by undermining this premise, though it is a strategy that “many people on both sides of the abortion debate consider…farfetched.â€
Finally, ACS has also posted video of its recent Supreme Court term preview panel. Featuring our own Tom Goldstein, the session discusses several key upcoming cases and the potential impact of Justice Sotomayor’s appointment on the Court’s forthcoming opinions. Enjoy.
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