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November 29, 2005

Problems with the SCOTUS docket

Inspired by this post by Jason Mazzone at Concurring Opinions encouraging the Justices to take more cases, the blogosphere is buzzing about the Supreme Court's docket. Orin Kerr is skeptical about whether SCOTUS should expand its docket; Dan Markel, disappointed by the denial of cert. in the Gementera shaming case (background here and here and here), seems to support the Justices deciding more cases

Mike at Crime & Federalism has the best insights on this topic with respect to the High Court's criminal docket: "the problem isn't with the number of cases; it's with case selection. The Court is obsessed with the minutiae of capital cases while ignoring other major sentencing issues (say Booker retroactivity, which affects tens of thousands of people). And the Court is obsessed with crim pro cases in general."  As detailed in posts below, I have been singing this tune for quite some time:

November 29, 2005 at 08:08 AM | Permalink


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I don't think anyone should be surprised about the Court's short docket; the Court has institutionalized it. I think the "pool" system of reviewing petitions has a lot to do with it. As I understand it, the pressures on clerks to recommend denying cert are great, and their denial recommendation results in a virtually unreviewable decision not to grant.

Clerks are smart, but they aren't, in my experience, universally that smart. Moreover, they are young and career-oriented, which makes them unwilling to take risks. So far as I am aware, there is no upside to a clerk recommending the grant of cert in a case that doesn't have a cookie-cutter conflict or that the government isn't pushing. So the clerks say no, and the Court has abdicated its responsibility to review the denial recommendations.

I think this system leads to few grants of cert and the presence among those grants of too many cases choses simply because they fit the strict "conflict in the Circuits" mold rather than a consideration of the intrinsic importance of the questions coupled with the probable correctness of the decisions the Circuits have reached.

Those with better information or more recent experience of the Court should feel free to correct me or to disagree if they do.

Posted by: David in NY | Nov 29, 2005 11:55:02 AM

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