An Unhealthy Trend
The NY Times had an article in today's edition that quite took me by surprise. It seems that the Supreme Court has taken noticeably fewer cases to consider and that its docket is sufficiently unladen that the Court was actually dark yesterday.
Last year, during his Senate confirmation hearing, Chief Justice John G. Roberts Jr. said he thought the court had room on its docket and that it “could contribute more to the clarity and uniformity of the law by taking more cases.”
But that has not happened. The court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one.
...One [explanation] is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.
Another explanation lies across the street from the Supreme Court, in Congress.
Over the years, about half the court’s docket has been made up not of constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s, including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has begun to dry up. [Emphasis added]
If the explanations suggested in the article are accurate, then a couple of things occur to me. The first is that the Democrats serving in the current Congress should have been a bit more vigilant during the nominating process when it came to the Federal Bench. While we liberals were concentrating primarily on the Supreme Court nominees (Roberts and Scalito), we also should have been raising hell over some of the lower court nominations these past six years. The bluff of the nuclear option, and I am convinced that's all it ever was -- a bluff, should have been called early. Perhaps then we wouldn't have had quite the stacked judiciary (life-time appointments all) that we will now have for years to come.
The second thing that occurs to me does offset some of the damage of the first: the do-nothing 109th Congress at least didn't do as much damage as an activist congress might have. The Patriot Act in its various permutations, and the recent Military Commissions Act are bad enough and both will provide cases that will wend their way up to the Supreme Court within the next two years. The 110th Congress will hopefully be able to get something done, at least enough to ensure that the next Congress and the next administration will be in a better position to undo some of the damage.
Last year, during his Senate confirmation hearing, Chief Justice John G. Roberts Jr. said he thought the court had room on its docket and that it “could contribute more to the clarity and uniformity of the law by taking more cases.”
But that has not happened. The court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one.
...One [explanation] is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.
Another explanation lies across the street from the Supreme Court, in Congress.
Over the years, about half the court’s docket has been made up not of constitutional cases, but of cases requiring the justices to interpret federal statutes. Statutes from the 1970s, including major environmental laws, antidiscrimination laws and Erisa, the employee-benefits law, have been staples of the court’s docket for decades. But as Congress’s willingness to pass new laws has waned, the flow of statutory cases has begun to dry up. [Emphasis added]
If the explanations suggested in the article are accurate, then a couple of things occur to me. The first is that the Democrats serving in the current Congress should have been a bit more vigilant during the nominating process when it came to the Federal Bench. While we liberals were concentrating primarily on the Supreme Court nominees (Roberts and Scalito), we also should have been raising hell over some of the lower court nominations these past six years. The bluff of the nuclear option, and I am convinced that's all it ever was -- a bluff, should have been called early. Perhaps then we wouldn't have had quite the stacked judiciary (life-time appointments all) that we will now have for years to come.
The second thing that occurs to me does offset some of the damage of the first: the do-nothing 109th Congress at least didn't do as much damage as an activist congress might have. The Patriot Act in its various permutations, and the recent Military Commissions Act are bad enough and both will provide cases that will wend their way up to the Supreme Court within the next two years. The 110th Congress will hopefully be able to get something done, at least enough to ensure that the next Congress and the next administration will be in a better position to undo some of the damage.
Labels: Supreme Court
posted by Diane at 3:38 AM
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