The Incredible Shrinking Supreme Court Docket

Mayor during the abortion arguments. Will this institution survive the stench that this creates in the public perception that the Constitution and it's reading are just political acts. I don't see how it is possible. And Justice Clarence Thomas posed a similar question a few weeks ago after the leak. I do think that the the what happened at the Court is tremendously bad. I think it's um I wonder how long we're going to have these institutions at the

rape where undermining them. Beyond the drama, there's the question of just how productive the Roberts Court really is. When the Justice is rise for their summer recess, they'll have handed down only fifty nine decisions and argued cases. The third year in a row, they failed to reach sixty decisions. You have to go back to the Civil War to find such a small donkeet. In fact, until the Court used to decide more than a hundred fifty cases a year.

So what happened? Joining me to answer that question is constitutional law experts Stephen Vladdock, a professor at the University of Texas Law School. Steve, Before we get to the number of decisions, I want to talk about the slow pace of the court this term. The Supreme Court seems to be a little off its usual schedule. For the end of the term. It's got a heavier than usual backlog of decisions to hand down. I believe that not even half the cases for the term have been decided.

What's going on? Yeah, you know, can we just fit the halfway mark on Wednesday? So the Court standed down signed decisions in thirty argued cases. There are twenty nine to go. What's going on? And I think a lot of things are going on. I think, without questions, the unprecedented leak of the draft majority opinion in the Job's case in early May has, you know, had both the direct and indirect effect on the Court's ability to finish

its business this term. I think the amount of high profile cases the Court has handled this term on the so called shadow doctor, these orders and applications that don't go through plinary review, you know, those take time, and I think that time comes from somewhere else. And I think, you know, June's the cases the Court is given this term are on average, more significant, more divisive, more contentionous.

And so you add those three things together and you've got a court that Adam Feltman has pointed out had a greater percentage of its cases still to be decided on June one than at any point in the past, for which there's data going all the way back to. And the decisions that were handed down this week we're not the ones that most people have been waiting for. That's an understatement. You know, where's the missing in action Second Amendment case that the justices seemed all but to

have decided against New York at oral arguments? Where are the big cases? Yeah, I mean June. As you know, the Court does tend to backlog the big cases that you know, It's it's not uncommon for the last cases we get the last couple of weeks of June, even early July to not necessarily be the last cases that we're arguing, right, but rather the ones are the most divisive.

And I think that's a reflection at least in part of the gravity of the issues the justices are decided, and I think of the tenor of the separate opinions. I mean, you know, we saw just on Wednesday with Justice of myors descent in this under the Radar case about you know, a border patrol officer, some pretty sharp

accusation um directed towards the majority. And I think that's only going to get more seeded as we get towards the New York gun case, as we get towards the abortion case, this really important climate change case West Virginius cp A. So you know, I think we really are in for however long it's going to be, whether it's three weeks or a month or even six weeks, we are in for a pretty rocky period of decisions from

the Supreme Court. And because of this backup, those decisions are going to come right on top of each other in pretty short order. Steve. Many court watchers have pointed out that Justice is slow pace in handing down decisions this term, but in an opinion piece. You point out that for the last few years, the Court has been handing down fewer to Asians than ever before, sort of

the incredible shrinking docket. Yeah, I mean, I think this is to me almost a bigger story, maybe even a bigger story than the fact that the Court just happens to be behind this particular term. I mean, when all of a sudden done, when the Court does eventually rise for summer, recess's good to have handed down probably no more than fifty nine science decisions and argued cases last

term June it was fifty six. The term before it was fifty three, whereas before three years ago, the Court hadn't dip below sixty of these signed Merritt decisions since the Civil War. And this is part of a broader trend where you know, as recently as the early two thousands, the court was here to nine cases a year. In the twenty tents, it was still seventy eight cases a year. But really, since Justice Kennedy's retirement, the docket has fallen

into the low sixties, now the high fifties. And you know, I think there are plenty of folks would say, great, like if this court has less to do. That's not going to bother them. But I actually think that there are some longer term problems with the Supreme Court's docket continuing to drink in disrespect in The Court used to hear more than a hundred and fifty cases a year, which seems astonishing right now. So what happened to drop

the number by about fifty cases almost overnight? So by the mid eighties, there was still a large chunk of the Court's appellate jurisdiction that was mandatory, meaning there were cases that the justices had to pick up, especially appeals from state courts, and largely at the justice's own request. Congress in revisited that and gave the Supreme Court just

about plenary control over its docket. Congress five had really expanded the practice of what we call sir ferrari of discretionary review when the Supreme Court was reviewing the lower federal courts in Congress expanded that to encompass most appeals from state courts as well, And overnight we saw the sharp drop off from a hundred and fifty cases a year or two about nineties. That was a direct response to what Congress had done. What I think is really interesting.

What I think is something has stopped being attention to, is that since Congress hasn't listed a finger to touch the courts docket, and yet it is this term going to be probably around the size of the Court's docket in the first years after Act. And so, you know, I since there's a question worth asking about whether it's healthy not just for the Court as an institution, but for the court system, for the Supreme Court to be

decided in so few cases. So besides that congressional action or inaction, what else is causing the Court to take so many fewer cases? We don't know. I mean, as part of the problem here is that becauses is all discretionary, and becauses, you know, the court never tells us why it is taken. We're not taking cases, you know, We're less to speculate. But I do think there are a

couple of fairly obvious, at least circumstantial explanations. One is, as we've discussed before, the Court is doing more and more stuff through these unsigned, unexplained emergency orders on the shadow doctors. That that's tacking up more of the Court's attend in each term. I think also, since it takes four votes to grant sir SERRAI, well, you know, since Justice Kennedy retired in I think the Conservatives now can be more confident about which cases they do and don't

want to take. Since Justice Ginsburg died, the Liberals now don't have enough vote to force the granted sir sari on their own. And you know, I think what I do as the negative implications of the court here and fewer cases, that there are fewer cases articulating a new legal principles, that there are fewer cases establishing law that

can then be used in damages suits are inhavior's petition. Frankly, I think the current majority probably isn't much bothered by So, you know, if you add all these things together, I think it's just some of the pressures that used to lead the Court to take more cases have evaporated at the same time as there are more and more demands on the justices time from other parts of their caseload.

I found it very interesting when you pointed out that when Justice Ruth Bader Ginsburg died there's no longer a fourth vote for cases that the liberal members might want to hear that might be important to them. Does that mean it's making it easier for the Conservative members to push any agenda they might have. Oh, I don't think there's any doubt about that. And I think that's been true,

not just since eighteen. And I think you know, when Justice Kennedy was the median vote on the Court from two thousand six to two thou eighteen, there were any number of cases where the Conservative justices, or at LEAs some of them, would vote to deny certain even though they disagreed with the lower courts. A really famous example of this June is the marriage cases before Olburga fell.

There were this trench of early marriage cases where federal Courts of Appeals had struck down state marriage bands, and Chief Justice Roberts refused to provide a force of vote to grant certain even though Aldo, Thomas and Scalia wanted to.

And you know, I think the wise pread assumption that he didn't want to provide a force vote to grant serve because he wasn't confident that Justice Kennedy would join the Conservative So multiply that by you know, a hundred cases a year, and we see how Justice Kennedy's mere presence on the Court lad the Justice to be much more careful abou which cases you wanted to hear, whereas if Kennedy wanted to hear a case, then all of a sudden was open season. During that moderating influence has gone.

And so if the Conservatives want an issue, they now know that they have the vote, and so they can grant the cases they want, they can ignore the cases they don't want, and they don't have to worry about alienating any justice in the middle, because there isn't one. You point out that the drop into the sixties sixty cases a term and now the fifties is a phenomenon entirely of the last decade. So since Chief Justice Roberts has been Chief Justice for longer than that, can we

place the blame in any respect on him? I mean, I think that's the temptation these days to blame every day. But I think on this particular one, the answer is no. I mean, I think insofar as anyone agrees with me that it's a problem that the Court is hearing so many fewer cases, and thence that responsibility lies with all of the justice is equally, and I think especially with

justices who repeatedly have the majority. I either conservatives. But I think the larger problem here is not one of the Court's own making, but rather of Congress's application that what the statute was an example of was this long standing, consistent, historical pattern where there was this ongoing dialogue between the Supreme Court, lower federal courts, and Congress, where Congress was regularly invested in studying the dockets of the federal courts

and figuring out where there was too much, where there was too little, in tweaking things here and there. And since nine, Congress has basically left all of that alone, so much so that you know, there are a lot of folks today who don't think it's appropriate for Congress to be having conversations about regulating the Supreme Court's docket, which would be quite a shock to the two years of judges, justices and Congress members who had exactly that conversation.

So the key to me is, if folks agree that there's something problematic about not just the drop in the Court's caseload, but the control it leaves with the justices, the answer is not for the justice to change their behavior. The answers for Congress to think about whether there are categories of case in which the Supreme courts jurisdiction really should be mandatory, where the course you have to take

up appeal. It is hard to see Congress stepping in and telling the Supreme Court what to do these days.

It seems just alien to this Congress. Well, and this is the exact mindset that I think I'm you know that I'm hoping to push back against, which is it seems that way only because you know, Congress hasn't done it recently, but you know, historically from the founding um after the Civil War in the nineteen twenties, you know that this was a conversation where Congress was not just doing the Court's bidden but was a certain its own

authority as an independent institutional actor. I mean. The other piece of the second Folks to Find Surprising Act, which is very quietly the real turning point in the story of the Supreme Court's rise to power. Act June is known informally as the Judges Bill because it was basically written and lobbied for by the Supreme Court, I mean

by then Chief Justice William Howard Taffs. So you know, I think if we sort of take a slightly longer look at the history here, we shouldn't be nearly as troubled by the specter of Congress having more control over the Court stock it, and we shouldn't be alarmed at the notion that this is a conversation that the Court and Congress should be having together. I want to divert

for a moment. As you know, Justice Clarence Thomas talked about since the League mistrust at the Court having to look over your shoulder, and now you have the arrest of a man for trying to kill Justice Brett Kavanaugh. Has the Court changed forever? And I think there's no question that the events of the last few months um have been a really significant inflection point in the Court's history.

I think the tricky part, as with any inflection point, is you know, in an inflection point in which confection um, has the Court changed forever? I don't doubt it had the change in ways that are probably not for the better. I suspect the answer is going to be yes. But I also think that it's too early to tell, you know, for now. One of the symptoms of that change is how far behind the justices are and how frankly June unlikely.

I think it is that By the end of June, they will wrapped up their business with thanks so much for your insights as always, Steve. That's Professor Stephen Flattock of the University of Texas Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every

week night at ten b m. Wall Street Time. I'm June Grosso and you're listening to Bloomberg