Explaining the Supreme Court's shrinking docket.

• Author: Owens, Ryan J.

ABSTRACT

In recent years, the United States Supreme Court has decided fewer cases than at any other time in its recent history. Scholars and practitioners alike have criticized the drop in the Court's plenary docket. Some even believe that the Court has reneged on its duty to clarify and unify the law. A host of studies examine potential reasons for the Court's change in docket size, but few rely on an empirical analysis of this change and no study examines the correlation between ideological homogeneity and docket size.

In a comprehensive study, the authors analyze ideological and contextual factors to determine the conditions that are most likely to influence the size of the plenary docket. Drawing on empirical data from every Supreme Court Term between 1940 and 2008, the authors find that both ideological and contextual factors have led to the Court's declining plenary docket. First, a Court composed of Justices who share largely the same world view is likely to hear forty-two more cases per Term than an ideologically fractured Court. Second, internal and external mechanisms, such as membership change and mandatory jurisdiction, are also important. Congress's decision to remove much of the Court's mandatory appellate jurisdiction is associated with the Court deciding roughly fifty-four fewer cases per Term. In short, the data suggest that ideology and context have led to a Supreme Court that decides fewer cases.

The Court's docket is not likely to increase significantly in the near future. Unless Congress expands the Court's mandatory appellate jurisdiction or the President makes a series of unconstrained nominations to the Court that increase its ideological homogeneity, the size of the Court's docket will remain relatively small compared to the past. Because the Court's case selection process is an important aspect of the development of the law, this Article provides the basis for further normative and empirical evaluations of the Court's plenary docket.

TABLE OF CONTENTS INTRODUCTION I. THE COURT'S DEPLETED DOCKET A. How the Court Chooses to Review Cases B. A Descriptive View of the Court's Depleted Docket C. Existing Explanations for the Court's Depleted Docket 1. Internal Mechanisms and Court Composition 2. External Mechanisms 3. Principal-Agent Theory II. WHY CARE ABOUT A DIMINISHED DOCKET? A. A Depleted Docket Risks Leaving Important Cases Undecided B. A Depleted Docket May Leave the Court Out of Touch C. A Depleted Docket Might Lead to the Excessive Influence of Certain Parties or Interests D. A Smaller Docket May Diminish the Court's Legitimacy III. THEORIZING CHANGE IN THE COURT'S DOCKET SIZE A. Ideological Dispersion and Docket Size B. Contextual Factors and Docket Size 1. The Supreme Court Case Selections Act of 1988 2. The Certiorari Pool 3. Ideological Agreement Between the Supreme Court and Lower Courts 4. Membership Change IV. ASSESSING THE RELATIONSHIP BETWEEN IDEOLOGICAL DISPERSION AND DOCKET SIZE A. The Dependent Variable: Number of Decisions per Term B. Ideological Factors C. Contextual Factors V. RESULTS SUMMARY AND CONCLUSION INTRODUCTION

On April 9, 2010, Justice John Paul Stevens set off fireworks in Washington, D.C. when he informed the White House that he planned to retire during the Court's summer recess. Immediately, scholars and journalists predicted who might succeed him, as well as the political and legal ramifications of the selection. Attention quickly turned to a handful of individuals: Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, Judge Merrick B. Garland of the United States Court of Appeals for the D.C. Circuit, Judge Sidney R. Thomas of the United States Court of Appeals for the Ninth Circuit, Solicitor Genera] Elena Kagan, Department of Homeland Security Secretary Janet Napolitano, and former Georgia Supreme Court Justice Leah Ward Sears. (1) Each of these potential nominees came to the table with a set of unique advantages and disadvantages, to be sure. Commentators, unsurprisingly, debated a series of questions: Would the President nominate from the left? Would he nominate a centrist candidate? Would Senate Republicans filibuster the nominee? Indeed, one news outlet expected to see a "bruising ... confirmation battle" after Senate Republicans signaled they would filibuster any nominee who was "clearly outside the mainstream." (2) It is not hard to understand why attention was focused so closely on nominee ideology and Senate filibusters. After all, Presidents spend political capital on Supreme Court nominations primarily for ideological reasons. (3) Senators, of course, largely have the same motivations, and sometimes even employ the filibuster for purely political or ideological reasons. (4) Indeed, during the confirmation of Justicey Samuel Alito, Republicans had to invoke cloture to overcome a Democrat filibuster. In short, coming as it did during an election year, on the heels of the highly controversial health care showdown, and during a time when the two major parties were more polarized than ever, (5) the nomination seemed tailor made for a political battle.

Although the Stevens departure and elevation of Justice Kagan to the Court has come and gone, questions remain--questions that went ignored in the extensive discussion of the nomination. Would the new nominee to the Court spur it to hear more cases? What factors led the Court to hear historically low numbers of cases in recent Terms? And, are there ways to increase the number of cases the Court hears on an annual basis?

The answers to these questions are important for a host of reasons, not least of which is that the Supreme Court's impact on the law is a function of the type and number of cases it hears. When the Court fails to grant certiorari in cases that call for review, it leaves the law unclear. (6) And, by that standard, legal ambiguity may be rampant. The Court decides fewer cases per Term now than at any other time in its modern history. (7)

We examine factors that explain the Court's diminished docket with the hope of determining whether the trend can be reversed. Although existing studies advocate compelling and reasonable theories to explain the Court's shrinking docket, (8) such commentary overlooks one potentially important feature: ideological heterogeneity on the Supreme Court. Ideology, after all, drives much of Supreme Court decision making. It motivates whether the Justices grant review in cases, (9) to whom the Chief Justice assigns opinions, (10) whether the Justices bargain and negotiate over the content of opinions, (11) Justices' decisions to join final opinion coalitions, (12) and the Court's review of lower court decisions. (13)

Our theory is that ideology, along with internal and external factors, influences the number of cases the Supreme Court decides each Term. That is, we hypothesize that the Court will decide more cases per Term when it is composed of ideologically homogeneous Justices but fewer cases when the Court is ideologically heterogeneous. This explanation for the changing size of the Court's docket, as well as alternative hypotheses of docket change, will be tested empirically in this Article.

So, what can we expect from the Supreme Court in the near future? If our data have anything to say on the matter, the answer is a small docket in line with today's size.

Part I introduces the discussion over the Court's docket size. We examine how the Court sets its agenda as well as the descriptive data on the Court's trend over modern times to hear fewer cases. We then summarize existing theories of docket change. Part II highlights the normative concerns over the Court's depleted docket, suggesting that its failure to hear cases unnecessarily leads to confused law, a Court that may be out of touch with pressing legal issues, certain parties wielding disproportionate influence over legal outcomes, and a diminution of the Court's institutional legitimacy. Part III introduces our theory for how ideology matters in the selection of cases and why ideological disagreement on the Court leads to a smaller docket. Part IV discusses our explanatory model. Part V presents the results of the multivariate model. This Article concludes by summarizing our findings and their larger significance. It argues, in part, that unless the political landscape becomes less polarized and results in a less ideologically diverse group of Justices--which is not likely to happen anytime soon--we can expect the Court to continue to decide relatively few cases each year. In short, without a fundamental restructuring of the political landscape, the legal landscape for the Court, at least in terms of its docket size, is not likely to change significantly.

1. THE COURT'S DEPLETED DOCKET

   Today's Supreme Court decides markedly fewer cases than its predecessors. Since the 2005 Term, the Court has decided an average of 80 cases per Term, far fewer than the roughly 200 cases it heard earlier in the twentieth century. Justice Douglas captured this dynamic presciently when he remarked nearly forty years ago: "I think the Court [today] is overstaffed and underworked.... We were much, much busier 25 or 30 years ago than we are today. I really think that today the job does not add up to more than about four days a week." (14) In short, we are witnessing the "great disappearing merits docket." (15)

   What led to this change and how can we correct it? Attempts to answer these questions have generated many theories. We, of course, have our own. We will get to them in time. First, however, we discuss how the Court establishes its docket. Only by understanding how the Court sets its agenda can we then understand the theories that account for the change in its docket size. As such, this Part begins by explaining how the Court sets its agenda. We then provide descriptive data that highlight just how historically remarkable the Court's depleted docket is. Afterwards, we...