Discretionary dockets.

Author:Kozel, Randy J.

Fifty-five years ago, Professor Henry Hart examined "the volume of the [Supreme] Court's business and ... the ways in which the business is done." (1) After estimating how much time the Justices had available to deliberate and draft opinions in a given Term, Hart concluded that the Court was resolving far too many cases by full opinion. (2) He also drew a connection between the Court's overstuffed docket and the quality of its work. For Hart, the absence of time necessary for "the maturing of collective thought" ensured that few of the Court's opinions could "genuinely illumine the area of law" in question; others failed "even by much more elementary standards." (3) Reasoned and principled elaboration of the law, Hart contended, takes more time than the Supreme Court was able to give.

Judging by the numbers, one might think Professor Hart would be happier today. Hart assumed an average of 117 opinions of the Court each Term. (4) During October Term 2014, the Court issued only 74 such opinions, of which eight were summary reversals. (5) That performance was almost identical to the Court's October 2013 Term, which yielded 73 opinions, including six summary reversals. (6) These numbers are typical of a Court that now rarely decides more than 80 cases in a Term. (7) And the Court's docket shows no signs of expanding. If anything, the Justices are becoming more cautious in selecting cases for review. Recent years have witnessed the emergence of an informal "cooling off" period between the Court's initial discussion of a case and its order granting certiorari. (8) Assuming that this certiorari two-step holds, we can expect even more petitions to be rejected as "fact-bound" or beset by "vehicle problems," two phrases that the Justices' law clerks customarily invoke.

In theory, the Court's slim docket should allow it to leverage the luxury of time to enhance the clarity of its pronouncements and rationales. By crafting broad and comprehensive opinions, the Court could counterbalance the infrequency of its interventions. Such a Rulemaking Court would "illumine the law" through the reasoned elaboration Hart thought incumbent upon the nation's highest tribunal. (9) Likewise, maintaining a smaller docket gives the Court more time to ensure that the choices undergirding its rules are grounded in sound empirical, normative, and historical judgments. (10) While the Court's contributions may be relatively few and far between, they could be wide-ranging and deeply reasoned.

The corollary is that if the Supreme Court's docket were markedly larger--as it was for much of the twentieth century--its ability to function effectively as a rulemaker would suffer, as Professor Hart suggested. The natural mode of decisionmaking for a Court that confronts an onerous docket is not wide-ranging rulemaking, but fact-specific adjudication. (11) To be sure, an Adjudicating Court is aware that its pronouncements will affect subsequent cases by informing the rule of decision that future judges deduce and apply. (12) Yet the Adjudicating Court does not try to set out broad rules to govern situations beyond the case before it. Rather, such a Court makes its impression over time by resolving a string of disputes, each of which represents a marginal and incremental contribution to the development of the law.

We can compare the Rulemaking Court and Adjudicating Court with the Reluctant Court, which decides few cases and does so narrowly. The same impulses--such as a restrained vision of the judicial role or a deferential posture toward the political branches--that drive a court to limit its docket may also lead it to be guarded and tentative in the decisions it renders. Even so, from a guidance perspective the Reluctant Court does precious little. It calls to mind Professor Hart's lament about questions being "ducked which in good lawyership and good conscience ought not to be ducked" and opinions that "fail to build the bridge between the authorities they cite and the results they decree." (13)

There is one other option for how case selection can interact with decisionmaking mode. An Experimental Court resolves numerous cases and does so with comprehensive, wide-ranging rules. Notwithstanding its impressive ambition, the Experimental Court raises in fullest form the central concern noted by Professor Hart: a court that does too much might not do anything well.

In practice, the lines between these decisionmaking modes are often blurred. That, we submit, is all the more reason to pay attention to them. Whether the Supreme Court is understood as a unified institution or a collection of individual actors (or both), (14) its willingness to shift between decisionmaking modes raises important questions about its role--and its own conception of that role--in the constitutional order. These questions are salient as the Court moves forward from a 2014 Term marked by contentious debates over the judiciary's place in the political and social landscape, (15) followed by a 2015 Term in which the death of Justice Antonin Scalia forced the Court to examine how to fufill its role with only eight members. It is a good time to step back and consider more broadly the different modes of decisionmaking and their interaction with the Court's principles for deciding when and where to intervene.

It is common knowledge that the Supreme Court's docket is almost entirely discretionary. That means the Justices decide for themselves which cases to review and which to let pass. What we wish to emphasize is that while the Court's docket is indeed discretionary, its strategy in selecting cases should affect how it crafts its opinions--at least if the provision of guidance is among the Court's core objectives. Case-selection may be discretionary and still create important obligations for the way in which judges go about their work. Or so we claim.

This Essay examines the dynamics of the Rulemaking Court, the Adjudicating Court, the Reluctant Court, and the Experimental Court. We highlight the relationship between a court's mode of decisionmaking, docket management, and sense of institutional role. Our focus is the Supreme Court's treatment of constitutional law, whose derivation and evolution provides a rich topic of study. Whether the Supreme Court operates with a large docket or a small one, it can decide cases in a manner that crystallizes legal norms and provides guidance to the legal community and society at large. Yet for the Court to serve these functions effectively, its mode of decisionmaking must align with its strategy in filling (or not) its docket.

We suggest that in seeking to furnish guidance and enhance clarity, a supreme court that resolves a small number of cases is well served to decide those cases in relatively broad terms supported by relatively deep reasoning. By comparison, a court that decides a greater number of cases will have more opportunities to clarify the law through incremental interventions. General rules can emerge over time through the repeated application of law to fact. This gradual evolution is important, because a court that is busy with an onerous docket will have less time to devote to any single case. We also examine the Reluctant and Experimental approaches to constitutional law, which we conclude are ill-suited to the provision of sound guidance. They become attractive only if a court understands itself as primarily concerned with something other than the development and crystallization of legal principles.


    The U.S. Supreme Court contributes to the development of constitutional law by offering reasoned results. The Court issues not merely decisions, but opinions. This point may seem almost too banal to mention, but it turns out to be crucial to the structure of American constitutional law, for it connects the Supreme Court to the common law tradition.

    Here we are adopting a more capacious definition of common law judging than is sometimes employed. Owing to the thoughtful work of scholars such as David Strauss, common law constitutionalism is often depicted as standing in tension with text-centric methodologies such as originalism. (16) To some, that tension might suggest that one can be faithful to the common law tradition or to the Constitution's enacted text, but not to both. And, indeed, there are ways in which particular versions of originalism and common law constitutionalism find themselves in conflict. But in general, there is no contradiction in the view that original meanings and judicial precedents both have a significant role to play in shaping the trajectory of constitutional law. For example, one might conclude that the development of constitutional law can and should proceed through the accretion of judicial decisions even while recognizing value in adhering to the Constitution's text. (17) Or one might give primacy to the Constitution's original meaning while falling back on judicial precedent when the original meaning is too uncertain to resolve a particular question. (18) This overlap is reinforced by the fact that the common law tradition encompasses fidelity to judicial precedents and enacted texts just as it does fidelity to other sources of legal meaning. (19)

    The relationship between text, precedent, and the common law method also bears on recent debates over constitutional "construction." Some commentators contend that when the Constitution's text is underdeterminate--when efforts at semantic "interpretation" leave multiple options on the table--judges must rely on normative commitments to assist in "constructing" constitutional law. (20) There are a variety of intriguing dimensions to constitutional construction, and there are important challenges to the legitimacy of construction as a judicial enterprise. (21) For present purposes, we take no sides on the interpretation/construction debates, and we surely take no sides on larger questions such as the...

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