SCOTUS Foot-Dragging

Plenty of Room on the Fall Docket

Perhaps the slowdown at SCOTUS is because Chief Justice Roberts is getting a feel for the job, or perhaps it is because the ultra-conservative dominated bench is aware that no decision is better than an unpopular decision. But in any case, SCOTUS is slowing down the rate at which writs of certiorari are granted... and the number of cases being reviewed.

The inscription on the Supreme Court's front door declares "Equal Justice Under Law." But lately it almost seems that "Going Out of Business" might be more accurate. That's because the justices have been unusually stingy about agreeing to hear new cases.

Out of thousands of petitions for certiorari, as appeals are known, the court has granted only 16 for the term beginning in October. That is nine fewer than the 25 it had granted by this point in the previous term.

The court has an opportunity to issue more grants today and on each of the remaining three Mondays in June. But it is unlikely that the court will be able to find the 16 cases it would take to fill up its 32-hour fall oral argument calendar, lawyers who specialize in Supreme Court practice said. Even for a court whose caseload has declined from about 150 to about 80 per term over the past quarter-century, this is a slow pace.

Lawyers who practice regularly before the Supreme Court are aware of the trend but are at a loss to account for it. "Seth [Waxman, a solicitor general under President Bill Clinton] and I were just talking about it, and neither of us had a good explanation," said lawyer Carter G. Phillips, who argues several cases a year before the justices.

If anything, Phillips said, "they are stretching to take some cases. The ones they are taking are not slam-dunk grants."

One factor, lawyers noted, might simply be the lack of lower-court rulings that cry out for correction. Usually the court looks to resolve "circuit splits" -- conflicting decisions by regional appeals courts on major issues. But with the appeals courts increasingly stocked by Republican appointees, there is relatively less disagreement among them.

The solicitor general, known as the "tenth justice" for his office's influence on the court, is often a source of new cases. As he is the U.S. government's representative before the court, his cert petitions are often granted. But in the current term, Solicitor General Paul D. Clement has filed only 13 petitions, compared with 22 last term. Moreover, the justices are being choosy even with the "S.G." They have denied two of his petitions so far.

The court probably lost a possible new case when Wen Ho Lee settled his lawsuit with the federal government. News organizations had appealed lower-court orders requiring their journalists to reveal confidential sources to Lee. The court put the matter on hold to allow time for settlement negotiations, and it can now conclude that the issue is moot.

The slow pace of cert grants is also ironic, as it is happening at a court now headed by a former Supreme Court litigator, Chief Justice John G. Roberts Jr. At his confirmation hearings, Roberts observed that "there's room for additional cases on the docket." The lack of cert grants thus might illustrate the limits of a chief justice's ability to change the court -- or that the court's docket looks much different from the inside. The court's seven veteran members might also be cautious about taking on new issues until they are better acquainted with Roberts and fellow newcomer Samuel A. Alito Jr.

There has been an increase since last term in cases in which the court has asked for the solicitor general's views -- a tactic the court sometimes uses to buy time before deciding on a significant cert petition. But the increase -- from 15 to 17 -- is small, and still well below the recent high of 24 such requests in the 2002-2003 term.

If the court waits until October to fill out its fall calendar, lawyers with cases in December will face sharply compressed schedules for filing their briefs. To avoid that, the court would have to announce a list of new cases in early September. That's not unprecedented, but it does require the justices to do extra work at a time when they're usually on break.