121. The burden of not deciding cases

A couple days ago the Associated Press sent a Gina Holland story over the wire about the number of certiorari petitions granted by the Supreme Court during this first year of the Roberts Court.  "A petition for writ of certiorari" is the Court's faux-antique term for a litigant's request that the Court hear a case.   In form, the "petition" is just a brief, nothing out of the ordinary about it except that the Court, ludicrously, requires private litigants to print it in a little booklet with a brightly-colored jacket - as far as I can tell, just because they can.

The phrase "writ of certiorari" is old.  It refers to the way English aristocrats got their cases transferred from the county courts to the King's Bench, where the judges could be counted upon to share the high-class litigant's disdain for those whom J.P. Donleavy memorably termed "the bootless and unhorsed."  

Our Supreme Court's use of "writ of certiorari" effectively dates only from 1925.  Prior to that year, Americans generally had the right to take their case "all the way to the Supreme Court."  That right was greatly curtailed in 1925, and just about abolished in 1988 with the jokingly named "Judicial Improvements and Access to Justice Act."  (See footnote 187 of this article.)  The Supreme Court has explained that "Writs of certiorari are matters of grace"  - a phrase presumably intended to put you in mind of that other well-known dispenser of grace.  (See post 114.)

It's something between ironic and sinister that the highest court of a democratic country would appropriate the name of such a profoundly anti-democratic procedure as the writ of certiorari to describe a device substituted for the citizenry's right to be heard. 

Ms. Holland's article contains very bad news: 

Justices are running well behind in filling their argument calendar for the term that begins in the fall. They have accepted 18 cases, compared with 27 by this time last year and 32 in 2004. ...

The nine members of the court have wide discretion in deciding what cases to review. An important part of their jobs - done with substantial help of law clerks - is sifting through the nearly 9,000 appeals filed each year and picking about 80 to consider.

"80 to consider" is a pathetically low number.  There are nine justices, each seconded by four law clerks.  Forty-five lawyers labor all year to decide 80 cases? 

Okay, it's not all year but something more like eight months, what with all the long vacations the justices take.  And, okay, most of the justices are elderly and not inclined to work too hard.   This 1998 Slate article said Chief Justice Rehnquist "arrives at the court around 9 and leaves by 3".  And, okay, the clerks are fledglings just a year out of law school, and most of them have never watched a trial from start to finish.

But still ... fewer than two cases per lawyer?

The Supreme Court's main job is not hearing cases.  That's what the Court spends most of its time and energy doing.  Here's a graph of the Court's "workload" since 1960.  Between the 9,000 figure given in the graph and the figure of 80 given by Ms. Holland we have a concise description of what the Supreme Court does: it doesn't decide 8,920 cases per year.  Here's a typical week's work for the Court: an 8-page list of cases it won't hear.  It must be exhausting.

This post from SCOTUSblog tries to explain why the justices don't decide cases, and while it makes many good points it skips a couple others: (1) the clerks, being baby lawyers, have no idea which cases raise issues of practical as opposed to symbolic importance, so that assigning them responsibility for choosing cases is not much different than pasting the petitions to the wall and playing pin the tail on the donkey; and (2) the justices think of the Court as a cross between a rest home and Valhalla and don't care to discommode themselves.

The Court's incredible shrinking workload is disastrous in three ways.  First, it means that for practical purposes we don't have a Supreme Court at all.   The only court actually mentioned in our Constitution doesn't function as a court.

Second, as the Court hears ever-fewer cases, its rulings get fuzzier.  This might seem paradoxical but it's not.  Each case is an opportunity for each of the nine justices to pontificate on a given topic, perhaps the last chance they'll ever have to do so, so we get ridiculous cases with five contradictory opinions.  Here's some sobering statistics:

Volume 150 of United States Reports, the Supreme Court’s official collection of opinions, appeared in 1893, 105 years after the Constitution was ratified.  The Court then hit a steady pace, requiring 44 years to hit volume 300 (1937) and exactly the same number of years to reach volume 450 (1981). 

But in the succeeding 24 years, while the number of cases decided was drastically reduced, the Court filled up 95 new volumes - and that doesn't even include all of the 2004 term cases, some of which have yet to be printed in volume form.   At this pace, it will take just another 13.88 years to reach volume 600. 

So while the number of cases has decreased, the justices are filling up even more pages.  Their opinions are getting much - much - longer, and that means they aren't setting up clear rules for lower courts to follow.  They're cluttering our law libraries' bookshelves with self-indulgent ramblings instead. 

Third, the reduction in the number of cases encourages lower courts to play the lottery.  If the Ninth Circuit thumbs its nose at the Supreme Court 100 times a year, and the Supreme Court reverses it 24 times (as it did in 1996), it means that in 76 cases the Ninth Circuit, not the Supreme Court, was actually supreme.  With the odds that the Supreme Court will review a given case nearing zero, why should a federal appeals court judge or state supreme court justice pay any attention to it, unless he or she happens to agree with a particular result? 

Besides, the exploding length of the opinions makes it very difficult for judges to know what the Supreme Court is saying.  When the Court produces a welter of inconsistent opinions totaling over 100 pages, even the most sincere and earnest lower court judge has no way to tell what the opinion actually means.   Or, rather, it's impossible to say which of its many contradictory meanings is the real one.  Lower court judges can only guess - which raises the jurisprudential equivalent of the tree-falling-in-the-woods puzzle: if no one knows what the law is, is it law?