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After Five Justices Are Seated, Supreme Court Docket Falls ‘Off a Cliff’

Posted Sep 28, 2009 10:10 AM CDT
By Debra Cassens Weiss

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Scholars considering the reason for the U.S. Supreme Court’s declining docket should look to the certiorari voting records of five justices appointed between 1986 and 1993, according to a research scholar at the University of Minnesota law school.

Researcher David Stras notes five justices who joined the Supreme Court between during those years voted to grant certiorari 46.2 fewer times per term, on average, than the justices they replaced. The New York Times covers Stras’ theory, along with other reasons advanced for the decline at a recent conference at Yale Law School.

The court’s docket has declined by about half since the early 1980s, when the Supreme Court decided more than 150 cases in a year, according to the Times. One of the most dramatic declines occurred from 1992 to 1993, when the number of court opinions declined from 114 to 87.

“You saw the docket fall off a cliff” as the five justices took their seats, Stras told the Times. He studied more than 2,500 certiorari requests from 1986 to 1993 that attracted at least one justice’s vote to review the case, and wrote a paper detailing his findings.

The five justices were (1) Antonin Scalia for Warren Burger in 1986; (2) Anthony M. Kennedy for Lewis Powell in 1987; (3) David H. Souter for William Brennan in 1990; (4) Clarence Thomas for Thurgood Marshall in 1991; and (5) Ruth Bader Ginsburg for Byron White in 1993.

Ginsburg’s replacement of White had the greatest significance in terms of cert votes. White had voted to grant cert a “prodigious” average of 215.6 times per term while Ginsburg voted to grant plenary review only 63 times, according to Stras.

Another theory for the declining docket is the rise of the cert pool in which cert petitions are evaluated by a group of law clerks, one of whom writes an analysis with the aim of searching out and destroying undeserving petitions. Others blame the U.S. Solicitor General’s office, which averaged about 16 petitions for cert in the last four terms, compared to 29 the four terms before that.

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