Academic

Stras on the Decline in the Supreme Court's Plenary Docket

By Lawrence Solum

David R. Stras (University of Minnesota Law School) has posted The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation (Constitutional Commentary, Forthcoming) on SSRN. Here is the abstract:

More than a dozen hypotheses have been proposed to explain the startling decline in the Supreme Court's plenary docket, which has puzzled scholars and commentators. Using a unique dataset containing the votes of every Supreme Court Justice that served on the Court between 1986 and 1993, this paper develops support for the hypothesis that changes in the Court?s membership have contributed to the decline in the Supreme Court?s plenary docket. The data demonstrate that for every Justice appointed from the October 1986 Term through the October 1993 Term, the newly-appointed Justice voted to grant certiorari less often than his or her predecessor. In fact, the average Justice appointed between 1986 and 1993 voted to grant certiorari 46.2 fewer times per Term than his or her predecessor.

The substitution of Justice Ginsburg for Justice White had the greatest significance. Justice White voted to grant plenary review a prodigious 215.6 times per Term, on average, between 1986 and 1993. Meanwhile, Justice Ginsburg voted to grant plenary review during the October 1993 Term only 63 times, or 29.2% as often as her predecessor. The data and figures in this commentary demonstrate that personnel changes have had an effect on the decline in the Supreme Court?s plenary docket.

And from the paper:

Justices also differ in how they approach the certiorari process. As Peggy and Richard Cordray explain, ?the grant rate of a particular Justice . . . combines aspects of personality, judicial philosophy, practical administration, political theory and historical perspective.?13 For any given case, the Justices may disagree on whether the case is important enough for plenary review, whether it provides a good vehicle for answering the question posed in the petition for certiorari, and whether plenary review of the case is likely to result in an outcome or holding that is consistent with their ideological views. With respect to the latter point, some Justices engage in strategic voting, in which they cast a vote for a ?defensive denial? in a case ?to fend off an undesirable result on the merits,?14 or an ?aggressive grant? if a particular Justice is confi- dent that the Court ?is aligned with their preferences . . . in an attempt to move the law.?15 In other words, Justices? voting behavior at the certiorari stage is partially dependent on the ideological composition of the Court itself.

Moreover, voting behavior may also represent a fundamental difference in how Justices view the supervisory role of the Supreme Court. Justice White, for example, held an ?unswerving view that the Court ought not let circuit splits linger, that it should say what the federal law is sooner rather than lat- er.?16 That robust view of the Court?s supervisory role is reflected in Justice White?s frequent dissents from denials of certiorari for any case involving a circuit split.17 Finally, Justices have noted that the vote on certiorari is ?highly personal,?18 ?rather subjective,?19 and ?more a matter of ?feel? than of precisely ascertainable rules.?20 Thus, the certiorari votes of individual Justices are dependent not only on ideological and philosophical considerations, but also the idiosyncratic preferences of the Justices who cast them.

It is unsurprising, therefore, that individual Justices vote to grant certiorari at considerably different rates.

Interesting & recommended.

Full post as published by Legal Theory Blog on September 23, 2009 (boomark / email).