Legal scholarship highlight: An empirical analysis of the Court’s shrinking docket

In recent years, the Supreme Court has handed down a number of important and well-known rulings. During this Term, Florida v. U.S. Department of Health and Human Services promises to be significant, as does Arizona v. United States. All Court observers, and many members of the public, know something about Citizens United v. FEC. And most people likely know of the Court’s 2000 decision in Bush v. Gore. The publicity attached to these cases has led many to believe that the Court decides hundreds of cases each year. The reality, however, is quite different.

The modern Supreme Court decides relatively few cases. The Court’s jurisdiction is almost exclusively discretionary, which means that the Justices hear only the cases they want to hear. As a consequence, the Justices decide less than 1% of all cases that they are asked by the parties to decide. Unless a party can show that there is strong conflict among lower federal courts on an issue of law, or the party’s request has the support of the Solicitor General, there is little chance the modern Court will hear the case.

What is more, the trajectory of the Court’s docket suggests that it will hear fewer rather than more decisions.  The Court decides fewer cases today than at any time in recent history. For example, in 1940, the Court decided 215 cases. By 2000, that number fell to 87. In 2008, the Court decided just over 70 cases. Modern Justices hear and decide but a fraction of the disputes their predecessors decided.

Why does the modern Court decide fewer cases than previous Courts? That is precisely the question we sought to answer. To address this question, we analyzed data from the Court’s 1940-2008 Terms. Our belief, supported by empirical evidence, was that several contextual and ideological factors were associated with the decline. We found that ideological heterogeneity among the Justices was associated with a declining docket, as were changes in the Court’s  membership, and Congress’s elimination of (most of ) the Court’s mandatory jurisdiction.

Consider the effect of ideological heterogeneity on docket size. Our results show that Justices who are ideologically similar are more likely to agree on what cases to hear and decide. Working as a team with a common purpose, these Justices know what they want and work together to realize it. The opposite is true for an ideologically fractured Court. These Justices have fewer incentives to work together, are more skeptical of their colleagues’ goals, and therefore are more apprehensive to hear and decide cases. The result is a smaller docket.

Consider, further, the Court’s membership. The departure of certain Justices from the Court – and the arrival of their replacements – led to a smaller docket, as different philosophies of docket management took hold. For example, Justice White strongly believed the Court should clear up conflict among the lower courts over the interpretation of federal law. This belief led him to vote to grant review in hundreds more cases than his colleagues. And his vote often led his colleagues to agree to review cases – even cases they otherwise might not have wanted to hear. When White was replaced by Justice Ginsburg, the Court’s docket shrank.

The Court’s declining docket carries important normative considerations. For example, a Court that decides a small number of cases may be subject to a greater risk of capture by interest groups than a Court that decides a large number of cases. Indeed, a recent book by Ryan Black and Ryan Owens on the Solicitor General (SG) of the United States (The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions. New York: Cambridge University Press, 2012) finds that the SG’s office actually influences Justices to vote in ways they otherwise would not vote. If the SG is involved in a super-majority of the Court’s cases, his office will hold considerable sway over legal policy in the United States. Additionally, fewer Supreme Court decisions mean less guidance for lower courts. A smaller docket also risks the Court becoming out of touch with the lower courts. And, finally, a Court that decides fewer cases may lose legitimacy because the effects of its decisions are amplified. As the Court takes on fewer cases, the ones it does decide carry more importance. If the Court rules controversially, its actions become even more noticeable.

The modern Supreme Court decides only a fraction of cases as compared to earlier Courts. This decline has significant real-world implications. Yet, altering the practice will be difficult. As our results suggest, unless our elected officials place on the Court ideologically homogenous Justices with strong concerns about clearing up lower court conflict, or unless Congress changes the Court’s jurisdiction, we can continue to expect the Court to hear few cases each Term.