The Supreme Court and Docket Control
Perfect timing! I was going to write a post this morning about the Supreme Court’s docket, and then Linda Greenhouse writes a story in today’s New York Times about the decreasing frequency of 5-4 decisions in the Supreme Court and possible explanations for this decrease. She mentions several explanations, but misses one big one: the changing nature of the Supreme Court’s docket. The Supreme Court takes many fewer cases, and many fewer controversial cases, than it did years ago.
The nature of the Supreme Court’s docket, and what that means for the Court as an institution, is an important issue. In common law jurisdictions such as the United States, it is much more common for the highest court dealing with constitutional matters (e.g., the Supreme Court of Canada, the House of Lords in Britain) to have broad control over its docket–and decide fewer cases as a result–than in civil law jurisdictions.
There are many reasons to explain the difference between docket control in common law and civil law constitutional courts, but of greatest concern to me is what this means for the role of the highest court in a common law system. It means that the highest court can decide what cases to decide, and can do so almost unilaterally, because legislatures have granted more control over dockets to these highest courts, and it does not seem that this will change in a massive way any time soon. When the highest court makes a controverial decision–let’s say Hamdan, for instance–scholars and newspapers cover it, members of Congress debate it and pass legislation in response, and so on. There are practical checks on the Court. But what about when the Court decides not to decide a case? You can only write so many law review articles or op-eds about denials of cert. There are many fewer, if any, practical checks when highest courts decide not to decide.
This is why I have always thought that Frederick Schauer’s Harvard Law Review foreword in 2006 was so compelling. Even apart from whether citizens like what highest courts do, or whether they comply with the decisions of highest courts, it seems just as important that the highest courts of most common law countries only rarely decide issues of great importance because of their ability to duck important cases. This might be as good an explanation as any as to why highest courts remain so popular in so many democracies–they decide very few relevant cases.