218. Mystery solved

I think we finally have an explanation for the Supreme Court's amazing shrinking workload.  As the Washington Post reported last week, "After decades of decline in its caseload, the court is once again on track to take its fewest number of cases in modern history."

The answer is found in The Atlantic, which is running a Jeffrey Rosen interview with Chief Justice Roberts.   Roberts, it turns out, is particularly keen to issue unanimous opinions:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

There's a couple of ways of looking at that.  Either it means that the Roberts Court will concentrate on easy cases, such as slapdowns of particularly lawless decisions by the Sixth and Ninth Circuits.  (See post 210 and post 207.)  Or, more positively, it means that the Roberts Court will decide cases on narrow grounds, resolving the issue presented rather than the issue of the justices' dreams, establishing a firm rule of law that can guide lower courts in the future.

Whichever view you take, it also means that the Chief Justice - and his allies on the Court, if he has any in this campaign for unanimity, which Scalia has laughed at - will tend to vote tactically on certiorari petitions.  They'll vote against hearing cases that are particularly messy, where unanimity isn't possible.  They will, in short, help ensure the 2006 term decides the fewest number of cases in modern history.

Ann Althouse is half-offended, half-amused by Rosen's observation that the justices, when they act badly, act like law professors.  I think Rosen is close to putting his finger on the problem.  But he's not quite there.  It isn't (just, or primarily) that the justices write like professors, but that their knowledge is professor-knowledge.  It comes from books, not experience.

It's astonishing - no, that's too mild a word; it's a scandal how little our justices know about the profession they dominate.  (See post 101.)  Souter is the only one who sat as a trial judge, and he's also the only one who ever sat as a state judge.  I seriously wonder if Scalia, Breyer or Thomas has ever watched a trial from start to finish in their lives, much less tried one. 

Even Stevens, who actually was a litigator - albeit one specializing in a field, antitrust, that rarely leads to trials - hasn't been inside a trial courtroom as a participant for 37 years, since he first took holy orders. 

The quality of the justices' opinions that Rosen identifies as academic is, upon examination, imparted to them by the circumstance that they were written by bright and ambitious people pontificating on  subjects they know nothing about.  The justices approach many real-life problems as simplified abstractions because no other approach is intellectually available to them. 

There's another reason why the justices' opinions so often read like law review articles.  Their custom of hiring only absolute novices to assist them - a custom that is so familiar to lawyers that they rarely notice its extreme weirdness (see post 41) -  means that the bright boys (and, less frequently these days, girls) (more here) who assist them can't contribute anything but the skills that got them to the top of the class at Harvard/Yale/Chicago/Stanford. 

The most important skill for success in law school is the ability to repeat back to your professor the things your professor said in his or her lectures.  So what the Supreme Court clerks contribute to the justices' consideration of cases is ... the things their professors said in their lectures.