Do Supreme Court Justices have too much time on their hands ? Judging from these statistics, in a Washington Post Op-Ed by Margaret and Richard Cordray (one a law professor the other a former clerk for two Supreme Court Justices) it would appear so:
Each June, as its term ends, the Supreme Court issues blockbuster opinions in highly sensitive, politically controversial cases. These decisions dominate the headlines, and in their wake the country debates whether the Supreme Court is too active. But this flurry masks a surprising trend at the court: It is, in fact, accepting fewer cases each term and deciding as little as possible in many of them. This newfound modesty results in significantly less guidance to the lower courts.
During the term just concluded, the court issued a grand total of 71 plenary decisions (in cases with full argument) — its lowest output since the Civil War. This continues a steady decline that has been underway since 1990. Over the past decade, the court has decided only half the number of cases each term that it decided in the 1970s and ’80s, when it regularly issued about 150 decisions per term. That is so even though thousands more cases are being filed.
And its not just in the number of cases that the Court seems to be slacking off in its workload, it is also changing the way it decides cases:
At the same time the Supreme Court is doing less with more, the new chief justice and many commentators are calling upon the court to decide as little as possible in those few cases it does have before it for full review. In a law school commencement address, Chief Justice John Roberts stated: “If it is not necessary to decide more to dispose of a case, then in my view it is necessary not to decide more.” He suggested that such restraint would foster consensus, commenting that “the broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible grounds.”
Leaving aside the issue of how many decisions it issues, it would seem to me that this philosophy makes eminent sense. Much mischief has been done over the years as a result of Supreme Court decisions that went further in ruling upon an issue than they needed to. This activism at the appellate level results in increased activism below.
The Cordoray’s argue that in deciding fewer cases and deciding them on narrow grounds, it is ceding its role as the highest Court in the land, resulting in lower Court’s that are increasingly likely to act on their own.
Rather than “one supreme Court” being in charge of the judicial branch, as the Constitution provides, the hundreds of lower court appellate judges and thousands of lower court trial judges are increasingly on their own to do as they see fit in broad areas of commercial, criminal and constitutional law. Perhaps some would applaud the resulting decentralization of our judiciary, but it is dramatically inconsistent with any recognizable notion of judicial hierarchy.
Decentralization, though, isn’t necessarily a bad thing. Not every issue needs to have a definitive ruling from the Supreme Court, for example. And there is a certain amount of wisdom in the idea that hundreds of District Court and Court of Appeals Judges may do better at getting some issues right than nine Supreme Court Justices and their clerks.
That said, its becoming clear that being a Supreme Court Justice isn’t exactly the hardest job in the world anymore, especially when your clerks end up doing the lionshare of the work.
