The Supreme Court docket’s shrinking, are ‘activist’ witch-hunts to blame?
In today’s New York Times, Adam Liptak takes a look at the “mystery of the shrinking docket” — how the Supreme Court went from reviewing about 150 cases a year in the early 1980s, to just 80 cases a year today.
There are lots of theories being tossed around by scholars on why the Court is hearing fewer cases, but one seems to be the most comprehensive. Since 1986, the new justices, to a man (and woman), simply vote to hear far fewer cases than their predecessors. The numbers speak for themselves:
The starkest difference was between Justice Byron R. White, who voted to hear an average of 216 cases per term from 1986 to 1992, and his replacement, Justice Ruth Bader Ginsburg, who voted to hear 63 cases in 1993.
The phenomenon seemed to cut across ideological lines. Justice Clarence Thomas voted to hear 72 cases per term, down from Justice Thurgood Marshall’s 125. Justice David H. Souter voted to hear 83 cases per term, down from Justice William J. Brennan Jr.’s 129.
As Liptak points out, it doesn’t seem to have anything to do with politics — both “conservative” (Thomas) and “liberal” (Ginsburg) justices have tapered off the number of cases they select from their predecessors. But why is this change so sudden in the last twenty years?
Well, it could be that around this time Edwin Meese III, Ronald Reagan’s attorney general in the 1980s, was beginning the conservative fight against “judicial activism” (a battle that Meese is still fighting today).
The “anti-activist judge” platform has been taken up by both sides of the aisle through the years, something Jeff Toobin writes about in last week’s issue of the New Yorker. And while it doesn’t quite explain Justice David Souter or Ginsburg’s nominations (both were straightforward in the idea that the Constitution was an “evolving” document, according to Toobin) it might explain why the new justices, as a whole, have wanted to hear less cases. In the last twenty years, the amount of political and popular pressure, both directly in hearings to indirectly in the press and from Congress, to not be an “activist” judge could conceivably lead the Court towards narrowing their case load in an effort to decide fewer Constitutional questions.
Update: A lawyer friend makes the point that my theory that judicial activism leads to a smaller docket is a bit attenuated, and anyway “since when have . . . justices with lifetime S. Ct. tenure, been afraid of being labeled ‘activist’?” It’s a good point — once on the bench, the justice have almost zero motivation to please anyone, so maybe my mashup of Toobin’s timeline on this problem doesn’t hold. Another theory that I was reminded of that doesn’t get mention in Liptak’s article: The Court’s docket has shrunk because the Court writes longer and more complex opinions than it ever has before. Perhaps it logically follows then, that they can’t take on the same case load they used to.