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December 27, 2009

A thoughtful defense of the SCOTUS docket status quo

Thanks to this postat Concurring Opinions, I saw that Judge J. Harvie Wilkinson III has a great new essay assailing arguments that assail the current docket and case selection process of the Supreme Court. This piece, which is titled "If It Ain’t Broke . . ." and is available here at 119 YLJ ONLINE 67, gets started this way:

“The most important thing we do,” Justice Brandeis once remarked, “is not doing.”  Alexander Bickel showed long ago how the Supreme Court’s discretionary certiorari jurisdiction was the lynchpin of those “passive virtues” that are essential to principled government.  Indeed, the cautious exercise of the certiorari jurisdiction may be as important to judicial self-restraint as the Court’s decisions on the merits.  We should therefore view skeptically any attempt to alter the Supreme Court’s case selection process.  Although critics in recent years have lodged various complaints about the Court’s docket, the solutions being urged upon us will neither cure the alleged ills nor avoid significant collateral damage.  The reformers make two basic assertions: first, that the Supreme Court should decide more cases, and second, that the mechanism by which the Supreme Court selects cases for review should be changed.  Both are wrong.

This piece is a must-read for anyone intrigued by debates over the Supreme Court's docket (a topic I have explored with respect to the death penalty).  Though I do not agree with everything Judge Wilkinson says, I agree with most of what he says.  Of particular importance is his emphasis on possible unintended and harmful consequences from a dramatic modification of the SCOTUS case selection process.

As I have noted in a few posts in recent months, the addition of two new Justices with professional histories as prosecutors seems to have helped the Court appreciate the importance of taking more consequential and interesting criminal cases.  Thus, while I was troubled by the SCOTUS docket a few years ago, I am now a real fan of the SCOTUS docket status quo.  Still, ever the fickle commentator, I might change my tune again if sentencing cases do not remain a regular feature of the Court's docket.

December 27, 2009 at 10:01 PM | Permalink


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Tracked on Dec 28, 2009 5:50:25 PM


The less these self-dealing, rent seeking incompetents do, the better all of us are.

Posted by: Supremacy Claus | Dec 28, 2009 12:07:46 AM

I've personally been fairly happy that SCOTUS has taken on long standing issues of patent law that simply won't generate splits due to how such cases always go to the federal circuit on appeal. I've also been pleased that at least some of the focus has shifted from death penalty minutia.

Posted by: Soronel Haetir | Dec 28, 2009 1:07:45 PM

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