La dolce vita: The Supreme Court's relaxed work ethic.
Not that life inside the Beltway is all that rough for members of the High Court. As a Supreme, you'll score front-row seats at important functions like the president's State of the Union address, complimentary membership at some of D.C.'s poshest clubs, and invitations to all the best parties. Fancy a bit of culture? Opera lovers Ruth Bader Ginsburg and Antonin Scalia got to be extras in the Washington Opera's production of "Ariadne auf Naxos."
A-list status also comes with its financial rewards. As one of the nine finest legal minds in the country, offers of lucrative speaking engagements -- like the $17,374 lecture Justice Stephen Breyer gave at Harvard last year -- will pile up on your desk. First class airfare to these affairs is usually included, and parking at National Airport is always fr-ee. And when you feel you've had enough of life in the fast lane, you can simply retire and continue to receive your full salary -- for $164,100 associate justices and $171,500 for the chief.
Of course, the position is not all fun and games. Justices must sweat through some of the most vexing issues of our day, knowing full well that each of their decisions will have a lasting impact on the lives of millions of Americans. Given the heavy burden we ask them to carry, it once seemed fair to offer the justices a few fringe benefits in exchange. Only lately, the justices don't appear to be keeping up their end of the bargain. While the perks continue to mount, the professional load the justices are shouldering seems to be growing suspiciously lighter.
To start with, the Supreme Court's productivity has been in a free fall. Every year the court is asked to rule on many more cases than it can reasonably be expected to consider. But over the last 20 years, the number of petitions to the court has ballooned -- from 2,300 in 1960 to 4,600 by 1970, to an all-time high of 8,100 in 1995. Court watchers initially worried that the justices would be overwhelmed in their efforts to hold constant the percentage of petitions accepted. Proposals for establishing a National Court of Appeals to ease the load were batted around. But the justices found their own solution: Far from worrying about the percentage of petitions they accept -- or even trying to hold the actual number of cases steady -- they have begun hearing even fewer cases than before. From 1950 to the late 1980s the court took on an average of 150 cases a year -- rendering opinions on about 130 of them. Last year they heard arguments for only 90 petitions and issued opinions on a mere 80 -- that's about 1 percent of the cases in the docket, and a far cry from the 1950s, when the court heard arguments for about 10 percent of the cases before them. In short, the chances of getting your case heard by the court am now only slightly better than those of winning the lottery. Before his retirement in 1993, Justice Byron White occasionally expressed concern over the shrinking caseload. Today's justices, however, show little embarassment about their underwhelming record.
A number of possible explanations exist for this less-than-ambitious schedule. It may simply be a question of changing culture. Most of today's justices were appointed by Reagan and Bush, making for a pretty conservative bunch. As a result, they're less partial to the activist, interventionist approach of their predecessors. Furthermore, since the vast majority of their colleagues on the lower courts were also appointed by Republicans, the justices generally tend to agree with lower court opinions and are disinclined to revisit them. Then again, maybe they're just lazy.
It certainly doesn't seem as if the lighter load is the product of the court's meticulous screening of the mountain of cases landing in its docket. In fact, what makes the justices' relative inactivity so distressing is that they appear to be allowing important cases to fall through the cracks. Take the reverse discrimination case involving affirmative action at the University of Texas Law School, brought to the court after an appeals court ruled in favor of white plaintiff Cheryl Hopwood. While acknowledging the importance of the questions involved, the court chose to pass. To paraphrase the explanation given by Justices Ruth Bader Ginsburg and David Souter: right case, wrong issue. But was it? Similar cases were popping up all over the nation. Thus, according to William and Mary scholar Rodney Smolla, the court's refusal to consider the Hopwood case left admissions offices in legal limbo. Moreover, when the court finally did decide to address affirmative action, it chose a case whose implications were far narrower.
Of course, one can hardly blame the Supremes for overlooking important cases. While many citizens may assume that the difficult job of choosing cases is personally handled by the justices, in reality they tend to avoid this chore. After all, that's what clerks are for! Each justice hires up to four clerks a term -- bright, ambitious, 20-something law school grads who are only too eager to put in the kind of hours needed to get their bosses' jobs done. Amy Kett, a graduate of Harvard Law who clerked for O'Connor in 1992, says she and her fellow clerks worked "as many hours as we could stay awake, often past midnight and on weekends." Prominent Washington attorney Paul Cappuccio recalls working 357 out of the 365 days he clerked for Scalia in the 1987 term, usually from 8 a.m. to 10 or 11 p.m. In exchange for their servitude, however, Supreme clerks wield a degree of power most of us only dream about: They decide which of the 7,000-odd petitions streaming across their desks to pass on to the justices. In 1982, Justice John Paul Stevens readily admitted that he reads only 20 percent of the cases petitioned to the court -- the ones his clerks recommend.
With all this extra assistance, on top of a lighter caseload, you'd think the opinions the justices do render would be churned out of their marble palace like clockwork. But the court-iers prefer to wait until the last minute to finish the job. From a half to a third of the court's opinions are handed down in the last six weeks of the term. This past term, only six decisions were announced by December; 32 were not announced until June. Not surprisingly, the last month of spring is a famously hectic time at the court -- even if you're a justice you may have to put in some late nights. All the more reason to start planning for that three-month summer break.
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|Date:||Oct 1, 1997|
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