8. When Is a Court Not a Court?

During his confirmation hearings, according to Linda Greenhouse, Chief Justice Roberts "suggested that he saw room for the court to hear and decide more cases."  If he actually oversees an expansion of the Court's caseload, the new Chief would be putting the brakes on a long-term -- very long-term -- trend.  In the late 1870s, when the nation was much less populous, an average of 391 cases were docketed in the Supreme Court every year, according to one of its members.  During the 2004-2005 term, Concurring Opinions' Jason Mazzone has reported, the Court issued just 74 opinions.   What explains the incredible shrinking docket?  It's not as if Americans have grown less litigious.

During the 20th century, according to the conventional feel-good narrative -- the Whig interpretation of legal history -- the Supreme Court recognized all sorts of new legal rights.  But during that same time Americans lost their most important legal right of all: the right to seek justice in the Supreme Court. 

The Supreme Court used to decide many more cases because Americans used to have the right to take their cases to the Supreme Court.  But, as Edward A. Hartnett has shown, Chief Justice William Howard Taft saw to the drafting of legislation that divided cases into two categories, a small residual category of appeals the Court was still required to hear, and everything else, which the justices had discretion to hear or not. 

Taft and some of his fellow justices, personally lobbying Congress for passage of the bill, promised they would use their new discretion merely to filter out frivolous cases.  They said they would "grant certiorari" in every appeal that raised a significant legal issue.   ("Granting certiorari" simply means agreeing to hear a case.) 

By 1941 the Court was granting only 17.5% of petitions for certiorari presented to it.  Fifteen years later the figure had slipped to 12.4%.  By 1971, it had dropped further to 9.6%.   (These figures are from the "Report of the Study Group of the Caseload of the Supreme Court," 57 FRD 573, 581 (1972)).  In 1988, after another round of lobbying by Chief Justice Rehnquist, Congress surrendered completely, abolishing the small category of appeals the Court was required to decide.  From that day the Court has had absolute discretion to decide, or not decide, any of the cases presented to it, or none of them. 

Imagine what any other group of federal workers would do upon being informed they no longer had to do anything they didn't want to do.  That's exactly what the Supreme Court did.  Nowadays the Court grants only about 1% of certiorari petitions.  Yet – and this is the seeming paradox the wily politician Taft understood so well – by reducing its caseload, the Supreme Court vastly increased its political authority. 

The Court has gotten out of the business of correcting legal error.  (See post 7 .)   While correcting errors made by lower courts might seem, in the abstract, a useful thing to do, the Court itself gains no benefit from it.  Today the Supreme Court agrees to hear cases on the basis of their "importance" – which is to say, the power they permit the Court to exercise.  The Court has transformed itself from an appellate court into a "continuing constitutional convention", in the words of Warren G. Harding's Solicitor General James M. Beck, as quoted in Hartnett's article. 

If Roberts actually increases the Court's caseload, it will be a baby step in the process of turning the Court back into a court.