The incredible shrinking docket.

Last year, the Supreme Court issued only 69 decisions with signed opinions--the smallest number it has produced since before the Civil War. This year, the Court will decide even fewer cases: It did not fill its December argument calendar, and one day of scheduled arguments was canceled. In February, there were three days when the Court heard only one argument, even though the Court allots time for two cases a day. The Court certainly won't have enough cases to fill its April calendar. And in all likelihood, this term will produce about 60 decisions.

To put those numbers in perspective: In the 1980s, the Court was regularly deciding 150 cases a year. During its 1991 October term, the Court issued 117 signed opinions. Now it's deciding half that number. (1)

At his confirmation hearings in 2005, Chief Justice John Roberts said he would like to see an increase in docket size--but exactly the opposite has happened during his first two years on the Court.

This trend has enormous implications for lawyers, judges, and the nation. More major legal questions now take longer to be settled. Conflicts among the circuits and the states have to wait (and wait) to be resolved. Obtaining certiorari always has been difficult, and now it is even harder.

There is no obvious explanation for this drop-off in the Court's workload. The number of petitions for certiorari has not decreased, and this year the Court will consider more than 8,000 petitions--from which it will choose fewer than 70 for briefing and oral argument. Many of those denied petitions concern important issues that have split the lower courts.

To pick just one illustration, last summer I filed a petition for certiorari in Allred v. Superior Court. (2) The question in that case was whether, and when, courts may impose gag orders on attorneys in high-profile cases to prevent them from speaking to the press. This is an issue that constantly recurs. As Professor Thomas Dienes of George Washington University has noted, "There has been an increasing use of broad, sweeping judicial gag orders on trial participants, including lawyers. " (3)

Attorney Gloria Allred was representing a witness in a California murder case and was subjected to a gag order. The order was typical of those entered in highly publicized cases around the country, such as the Duke University lacrosse team allegations, the Kobe Bryant case, and the Scott Peterson murder prosecution. (4) The Supreme Court has never addressed whether a gag order on attorneys is permissible, and a three-way split among the circuits has developed. (5)

The Sixth, Seventh, and Ninth circuits--and some states--allow gag orders on lawyers only if there is a "clear and present danger" to providing a fair adjudicatory proceeding, applying a strict scrutiny test in determining whether that standard has been met. (6) In contrast, the Second, Fourth, and Tenth circuits--and other states--allow gag orders if there is a "reasonable likelihood" of prejudice. (7) A third line of reasoning, focusing on whether there is a "substantial likelihood" of prejudice, is followed in the Third and Fifth circuits. (8)

It is hard to imagine a clearer split than this: Eight circuits have ruled, and they are divided among three approaches. But the Supreme Court denied certiorari in Allred. And this is only one of countless examples where the Court has declined to hear a case involving an issue of national import, on which it has never ruled and on which the lower courts are sharply divided. Every conference calendar of the Court is filled with cases like this.

Working harder, or hardly working?

What accounts for this dramatic downsizing? Perhaps the justices want to take fewer cases and work harder on them. Certainly the average number of pages per opinion has increased. Last year, the Court issued several slip opinions that were close to (or over) 100 pages long. (9) But it is hard to know what is cause and what is effect: Is the Court taking fewer cases so that it can write long opinions, or is it writing long opinions because it has fewer cases?

Longer opinions are not necessarily better opinions. Lower court judges with crowded dockets certainly won't welcome having to wade through a 100-page Supreme Court decision to figure out the holding and reasoning they should apply to cases before them.

Another possibility is that the U.S. government is seeking review in significantly fewer cases. In the 1980s, the solicitor general's office regularly sought review in about 50 cases a year. Last year, the office sought review in only 10 cases, and review was granted in four of those. (10) The solicitor general's office has always had important influence on the Court and has even been called the "tenth justice." This decline in its requests may account for part of the docket decrease.

A third possibility is more strategic voting by the justices. Under longstanding rules, it takes four votes for the Court to grant certiorari. But it might be that four justices will vote to grant certiorari only when they are reasonably confident that they will have a fifth vote lined up for an opinion. For example, the so-called liberal justices--John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer--may vote to review a particular case if they think there's a chance that Justice Anthony Kennedy will join them. And of course, the same could be true for the more conservative justices.

Another, less obvious, explanation is an increasing use of the "cert pool." In the past, certiorari petitions were read by one clerk for each justice, any one of whom could recommend a hearing. Each clerk knew what issues especially interested his or her boss and could recommend granting certiorari in those cases that the justice would likely want to hear.

Now eight of the justices--all but Stevens--participate in the cert pool. These eight justices have agreed that only one clerk will read each petition and write a memo that sums up the reasons why the justices should either grant or deny certiorari. This memo is used by everyone except Stevens in deciding whether to vote for review.

Some Courtwatchers have suggested that law clerks are under subtle pressures to recommend denying certiorari. A clerk who suggests that a petition be granted is more likely to be overruled, so recommending denial may seem the safest course.

The increased use of the cert pool and the presumed pressure on clerks to recommend denial, taken together, may be affecting the number of cases the Court agrees to hear. If eight justices are now reading only one memo per petition and this one memo is more likely to recommend denial of certiorari, it's possible that this is resulting in more thumbs-down votes.

Role of ideology

One other explanation is worth mentioning. Increasingly, the lower federal courts and the Supreme Court have become ideologically similar. Seven of the nine justices were appointed by Republican presidents, and the majority--by any definition is conservative. Most federal court of appeals judges have also been appointed by Republican presidents and are, by any measure, conservative.

It follows logically that the Supreme Court and the lower courts are in agreement more often than they differ. As a result, the Court may be comfortable accepting fewer cases.

All of these changes have likely contributed to the reduced Court docket. One frustration is that the Court never explains why it denies certiorari; it simply issues a one-sentence order denying review. Occasionally, a justice may issue a written dissent to the denial, but even this is rare. Nor have the justices publicly addressed the reasons for their decreased productivity.

Just as there is no obvious reason, there is no obvious solution to the case of the disappearing docket. In theory, Congress could expand the mandatory jurisdiction of the Supreme Court, but no one has advanced such a proposal. Greater public and congressional focus on the Court's workload might pressure the justices to take more cases--but they seem impervious to criticism. Commentators have been noting the trend for years, and yet the number of cases continues to decrease.

Whatever the explanation may be, the implications for lawyers and their clients are profound. At the very least, it is more difficult now than ever to obtain review in the nation's highest court. At worst, we may have entered an era in which ultimate justice is too often not only delayed, but flatly denied.

Notes

(1.) See Linda Greenhouse, The Case of the Dwindling Docket Mystifies the Supreme Court, N.Y. Times (Dec. 7, 2006), http://select.nytimes.com/gst/abstract.html?res= FA0611F73D550C748CDDAB0994DE404482 (fee required) (last accessed Feb. 1, 2007).

(2.) No. A112615 (Cal. App. Jan. 12, 2006), cert. denied, 127S. Ct. 80 (2006).

(3.) C. Thomas Dienes, Trial Participants in the Newsgathering Process, 34 U. Rich. L. Rev. 1107, 1109 (2001).

(4.) John Stevenson, Attorneys Want Gag Order Lifted; Lacrosse Players' Lawyers Say "Court of Public Opinion" Is Necessary for Justice, Herald-Sun (Durham, N.C.) Al (July 22, 2006); Jeff Benedict & Steve Henson, The Case against Kobe Bryant Unraveled in a Mock Trial, L.A. Times A1 (Nov. 6, 2004); Judge Issues Gag Order in Peterson Case, Chi. Tribune A16 (June 13, 2003).

(5.) "A three-way circuit split exists with respect to ... the threshold standard for imposing a prior restraint." U.S. v. Carmichael, 326 F. Supp. 2d 1267, 1293 (D. Ala. 2004).

(6.) U.S. v. Ford, 830 F.2d 596, 600 (6th Cir. 1987); Levine v. U.S. Dist. Ct., 764 F.2d 590, 595 (9th Cir. 1985); Chi. Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir. 1975); Twohig v. Blackmer, 918 P.2d 332, 335 (N.M. 1996); Kemner v. Monsanto Co., 492 N.E.2d 1327, 1337 (Ill. 1986).

(7.) In re Morrissey, 168 F.3d 134, 140 (4th Cir. 1999); In re Application of Dow Jones & Co., 842 F.2d 603, 610 (2d Cir. 1988), cert. denied, 488 U.S. 946 (1988); U.S. v. Tijerina, 412 F.2d 661, 665 (10th Cir. 1969); State v. Bassett, 911 P.2d 385, 387 (Wash. 1996); Natl. Broadcasting Co. v. Cooperman, 501 N.Y.S.2d 405, 408 (N.Y. App. Div. 1986).

(8.) U.S. v. Scarfo, 263 F.3d 80, 94 (3d Cir. 2001); U.S. v. Brown, 218 F.3d 415, 425 (5th Cir. 2000).

(9.) See e.g. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006); League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594 (2006).

(10.) Greenhouse, supra n. 1, at 1.

ERWIN CHEMERINSKY is the Alston & Bird Professor of Law and Political Science at Duke University. He wishes to thank Jonathan Pahl for his excellent research assistance.