The shrinking docket.

There has been a radical change in U.S. government over the past decade, especially in the last few years, and it has gone almost unnoticed. The Supreme Court has dramatically reduced the size of its docket. Last year, the Court decided less than half as many cases as it did a decade ago.

The downsizing of the docket has significant consequences for litigants in every area of federal law. It raises important questions about the proper role of the Supreme Court in U.S. society.

During the Supreme Court terms of 1981 through 1985, the Court averaged 160 cases per year.(1) The workload for these years was

* October term 1981: 167 decisions

* October term 1982: 162 decisions

* October term 1983: 163 decisions

* October term 1984: 151 decisions

* October term 1985: 159 decisions

During the terms of 1991 through 1995, the Court averaged only 96 cases per year.(2) In the past three years, the Court has averaged only 83 cases per term. The workload for 1991 through 1995 was

* October term 1991: 116 decisions

* October term 1992: 114 decisions

* October term 1993: 87 decisions

* October term 1994: 86 decisions(3)

* October term 1995: 77 decisions(4)

The Court is deciding only about 48 percent as many cases as it did in 1985. There is surely no other court in the country that has experienced this type of docket downsizing.

Indeed, the Supreme Court's workload is much smaller than it has been. For example, in the October term 1955, the Court decided 123 cases. In the October term 1960, the Court decided 146 cases. In the October term 1975, the Court decided 156 cases. These figures make the 77 cases on the docket for the October term 1995 all the more startling.

The Court has offered no explanation. In fact, the Court has not even acknowledged that it is deciding fewer cases. None of the justices has spoken publicly about this decrease or its rationale.

Some things definitely are not responsible for this shift. The decrease cannot be explained by fewer petitions for review. To the contrary, the number of certiorari petitions is rising. The most dramatic decrease in the Supreme Court's docket occurred between the October 1992 term and the October 1993 term when the Court's 114 decisions dropped to 87. In that same year, the number of certiorari petitions increased by 500 to a total of 6,896. In other words, the number of petitions for review is increasing, but the number of cases being heard is falling.

Nor, of course, can the downsized docket be explained by fewer federal laws or constitutional issues. Quite the contrary, the decrease has come about in concert with an increase in federal laws, especially new federal criminal statutes, as Congress federalized many matters that previously had been left to individual state control.(5)

In fact, the federal appeals dockets have increased significantly at the same time that the Supreme Court's has shrunk. The number of appeals filed in U.S. courts of appeals increased from 23,200 in 1980 to 40,898 in 1990 and 48,815 in 1994.(6)

Analysis

There are many possible explanations for the reduction. Perhaps docket reduction is the most basic form of judicial restraint: a conservative Court taking and deciding fewer cases. It might also reflect a decision by the justices that the Supreme Court should play less of a role in U.S. government.

In part, the decrease might be explained by elimination of almost all the Supreme Court's obligatory jurisdiction. Before 1988, the statutes defining Court jurisdiction provided that certain matters would come to the Court by appeal, as opposed to certiorari.

Where the statute provided for appeal, the Court was required to take and decide a case when review was requested. For example, cases came to the Court by appeal if a state's highest court declared a federal law unconstitutional or a state law constitutional.

Effective September 25, 1988, the distinction between certiorari and appeal as a vehicle for Supreme Court review was virtually eliminated.(7) Now almost all cases come to the Court by writ of certiorari. Appeals exist only for Court review of decisions by three-judge federal district courts, a procedure prescribed in a few federal statutes.(8)

However, the elimination of appeals to the Supreme Court does not explain very much of the decrease in the Courts docket. The Supreme Court long followed the practice of escaping the seeming obligatory nature of appeals by dismissing cases for want of a substantial federal question.

In Zucht v. King, in 1922, the Court declared: "[I]t is our duty to decline jurisdiction whenever it appears the constitutional question presented is not . . . substantial in character."(9) In practice, appeals long have been essentially discretionary with the Court.

Moreover, the most dramatic decrease in the Supreme Court's workload occurred several years after this statutory change. The reduction from 120 cases in the October term 1990 to 77 cases last year cannot be explained by the elimination of appeals.

Perhaps the decrease can be explained by a greater ideological agreement between the Supreme Court and the lower courts. The majority of federal judges were appointed by Presidents Reagan and Bush between 1981 and 1992. Likewise, a majority of the current Supreme Court--Justices Kennedy, O'Connor, Scalia, Souter, Thomas, and Rehnquist (as Chief Justice)--were appointed by these presidents. Conceivable; the Court is taking fewer cases because it agrees more often with the decisions of the lower courts.

Perhaps, too, the decrease is attributable to the justices' desire to work less hard. Half as many cases means half as many oral arguments to prepare for and hear. In tact, the Court now uses only a fraction of its available time slots for oral argument. In February 1996, only six cases were scheduled for oral argument.(10)

Half as many cases means half as many opinions to write. For example, the number of pages in the Supreme Court Reporter has fallen as the docket has been reduced. The Court wrote 3,552 pages in the October term 1984, but just 2,641 pages in the October term 1994.

Implications

There are enormous consequences to the decrease in cases. More major legal issues will go a longer time without being settled. More splits among the federal circuit courts will take longer to be resolved.

Although there is no magic number for the ideal size of the docket, the current size seems far too small for the Court to perform its essential function of clarifying federal statutory law, interpreting the Constitution, and resolving conflicts among the circuits. There are surely more than 77 cases a year in the entire country that need Supreme Court review. The same comment would be made, of course, if the Court were to decide 100 or 150 or even 200 cases. But the difference between 77 cases and 100 is still significant: 23 fewer major legal issues are resolved each year. Over a decade, hundreds fewer Supreme Court decisions will make a dramatic difference.

At the very least, it is time for the justices to explain what is happening. Many of them deliver public speeches at judicial conferences and law school and bar events. Since the Court is a part of the U.S. government, citizens should be informed why the Court is doing less than half the work it did a decade ago. At a time when case filings are burgeoning in courts across the country, the radical downsizing of the Supreme Court's docket is disturbing.

Notes

(1) All statistics are derived from annual tables published in the November issue of the Harvard Law Review. For example, the November 1995 Harvard Law Review shows statistics for the October 1994 term ending in June 1995. (2) There are 77 cases on the docket for the October 1995 term ending in June 1996. There could be fewer than 77 decisions if the Court dismisses any cases. (3) A recent article in the Washington Post states that only 82 decisions were issued last term; the discrepancy likely reflects cases that were argued separately but handled in a joint opinion. Joan Biskupic, The Shrinking Docket, WASH. POST, Mar. 18, 1996, at A15. (4) A recent Washington Post article estimates that there will be only 74 decisions this term after cases are combined for ruling. Id. (5) See, e.g., Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979 ( 1995); Kathleen Brickev, Criminal Mischief The Federalization of American Criminal Law, 46 HASTINGS L.J. 1135 (1995), Rory K. Little, Myths and Principles of Federalization, 46 HASTINGS L.J. 1029 (1995). (6) COMMITTEE ON LONG RANGE PLANNING, JUDICIAL CONFERENCE OF THE UNITED STATES, LONG RANGE PLAN FOR THE FEDERAL COURTS 15 (1995). (7) Pub. L. No. 100-352, 102 Stat. 662 (1988) (codified as amended) 28 U.S.C.A. [sections]1254 (1993). (8) See, e.g., Voting Rights Act of 1965, 42 U.S.C.A. [sections]1971(g) (1994); Railroad Reorganization Act, 45 U.S.C.A. 9719(c)(3) (1987). (9) 260 U.S. 174, 176 (1922). (10) AMERICAN BAR ASSOCIATION, PREVIEW OF UNITED STATES SUPREME COURT CASES (Issue No. 5, Feb. 8, 1996) (calendar on inside cover).

Erwin Chemerinsky is the Legion Lex Professor of Law at the University of Southern California Law Center in Los Angeles. He thanks Melissa Maccarone for her research assistance.