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Supreme Court's Plenary Docket--Part Two

By Jack M. Balkin

I apologize for the delay in posting the second part of the Supreme Court?s Plenary Docket series. Although I hope to get into some greater analysis with a later post in the series, today?s post will break down the Court?s plenary docket by subject matter/litigant. As with my post a couple of weeks ago, my analysis today will adhere loosely to the methodology employed by the Harvard Law Review in its annual Supreme Court Statistics issue. Though the Harvard Law Review?s categorization of cases is not perfect, I have found it to be very helpful in my own research with minor modifications. As a note, I would caution you not to draw too many conclusions from this post as any real trends in the Supreme Court?s plenary docket can only be discerned after analyzing data over a number of Terms, which is not my goal in the post today. (I am working on a book that systematically analyzes changes in the Court?s certiorari and plenary dockets over time.) Nonetheless, I think it is interesting to analyze the Term?s docket, if for no other reason than to give our readers an idea about what types of cases the Court is adjudicating this year.

The composition of this year?s plenary docket generally falls into longer-term trends (including the total number of plenary cases) with a few notable exceptions. First, the plenary docket contains a slightly higher proportion of cases involving federal governmental litigation than in any of the past five Terms. The Court granted certiorari in 15 cases involving federal government litigation, or about 19.2% of the total number of cases argued this Term. The primary impetus for the increase appears to be a greater number of cases (10) involving Supreme Court review of administrative action, such as cases arising under environmental, immigration, or other administrative statutes. The ten cases from OT08 involving review of administrative action contrasts sharply with the four cases from OT07, five cases from OT06, and six cases from OT05. Meanwhile, the number of cases involving state or local governmental litigation has dropped precipitously to just 3 cases this Term or about 3.8% of the plenary docket, which is much smaller than the 12 cases from OT07, 14 from OT06, and 15 cases from OT05 in this category. Examples of cases included in the state or local governmental litigation category include those involving federal preemption of state law, the Voting Rights Act, sovereign immunity, and civil rights cases under 28 U.S.C. § 1983.

Second, the docket from this Term consists of a greater number of cases (29) involving private civil litigation, including 25 cases implicating federal question jurisdiction under 28 U.S.C. § 1331 or a comparable statute (such as 28 U.S.C. § 1338). Although I am not a huge fan of the Harvard Law Review?s categorization of litigation involving private parties, it is worth noting that there were only 15 such cases from OT07, 18 such cases from OT06, and 23 such cases from OT05 (19 of which involved federal question jurisdiction). Given the diversity of cases included in this category, I do not think the growth in private civil litigation is nearly as remarkable as the drop in litigation involving state and local governments.

Third, the number of cases involving criminal issues (25), such as federal criminal cases (10), federal habeas cases (7), and state criminal cases (8) all seem to be right around the mean from the past few Terms of the Supreme Court. Criminal cases as a percentage of the total plenary docket seem to hover around 25% of the total composition of the docket and this Term is no exception. As a means of comparison, the Court heard 26 criminal cases in 0T07 and 20 criminal cases in OT06, though the distribution of cases from state and federal courts (and the number of habeas cases) was slightly different in each of those Terms.

Finally, it is worth noting that the Harvard Law Review further subcategorizes cases by subject matter, but it is able to do so only on an ex post basis after the Court issues opinions in every pending case from a particular Term. I elected not to analyze pending cases too finely because, as many of our readers know, some Supreme Court cases involve multiple issues and it is often hard to predict what the basis for the Court?s disposition will be ahead of time. Thus, I aimed for accuracy over comprehensiveness in this particular post.

Note: Cross-posted at SCOTUSBlog.

Full post as published by Balkinization on May 08, 2009 (boomark / email).