« What the latest USSC data reveal | Main | Man bites dog: Eighth Circuit affirms downward variance »

December 7, 2006

Solving the SCOTUS docket mystery

In this morning's New York Times, Linda Greenhouse has this terrific article entitled "Case of the Dwindling Docket Mystifies the Supreme Court."  Linda provides reasons for the problems SCOTUS has had filling its docket, but one is most fundamental: "The federal government has been losing fewer cases in the lower courts and so has less reason to appeal." 

Of course,this is especially true in the federal sentencing universe after Booker, where the government is far more likely to seek (and win) through en banc review rather than through cert when it (rarely) loses before a circuit panel.  (I have often said since Blakely that the US Supreme Court is now probably the most liberal appellate court in the nation on sentencing issues; the Justice Department is obviously not eager to have the Court that brought us Blakely and Booker considering many sentencing issues.)

I dispute the notion that there is a "paucity of cases that meet the court's standard criteria" for review.  (Linda attributes this view to the Justices and Orin Kerr seems to agree.)  There are numerous circuit splits on Booker issues that impact thousands of cases every month.  Right after Booker, we had a crazy three-way circuit split over Booker plain error the Court refused to consider.  And, as I have detailed here, even after the Court considers reasonableness review in Claiborne and Rita, there are at least three other major circuit splits on how advisory guidelines are supposed to work.

In addition to four important post-Booker issues that surely "meet the court's standard criteria," there are many other sentencing issues that have split the lower courts before and after Blakely.  These issues range from the scope of the "prior conviction" exception to the burden of proof for large sentence increases to the application of Blakely to non-prison sentences to the constitutionality of residency restrictions and so on and so on....

Significantly, while the SCOTUS docket has shrunk dramatically over the last 20 years, the size of federal and state criminal justice systems have increased dramatically.  There are literally millions more criminal justice cases in the system now than there was two decades ago.  In my view, the problem is not the lack of worthwhile cases, the problem is a Supreme Court which has altered its view on what sorts of cases seem worth its time and energy.

December 7, 2006 at 08:08 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Solving the SCOTUS docket mystery:

» The High Court's Dwindling Docket from StandDown Texas Project
The must-read of the morning is Linda Greenhouse's Dwindling Docket Mystifies Supreme Court in the New York Times.Last year, during his Senate confirmation hearing, Chief Justice John G. Roberts Jr. said he thought the court had room on its docket [Read More]

Tracked on Dec 7, 2006 11:37:03 AM

» Round-Up from SCOTUSblog
At FindLaw, Edward Lazarus voices his opinion on Monday's school diversity cases here. Kenji Yoshino of Yale Law School also weighs in here at Slate. Following up on Linda Greenhouse's New York Times article about the "dwindling docket," Doug Berman... [Read More]

Tracked on Dec 7, 2006 5:31:36 PM


The existence of circuit splits isn't the only cert. criterion. The Court normally allows time for an issue to "percolate," so that the Justices will have the benefit of seeing it played out in a variety of circumstances.

Booker produced circuit splits almost instantly (partly because it was such an ugly decision), but it was sensible for the Justices to wait a while before jumping in again. Otherwise, they might have just screwed things up even worse than Booker did in the first place.

I don't know if the two new Booker reasonableness cases will be any better, but at least there is a reasonable body of case law for them to evaluate. Tom Goldstein noted in his recent podcast that when the Justices step in to resolve a circuit split, further confusion is often the result. Usually it takes years of decisions before something approaching a coherent doctrine emerges.

Posted by: Marc Shepherd | Dec 7, 2006 10:25:09 AM

Doug, I think there is too much of a fetish for the strict "conflict in the circuits" as the test for the importance as well as the uncertainty of a question. (In my opinion, the Court takes altogether too many trivial cases because they present a technical conflict, even where the issue is not very important.) There are clearly instances of cases dealing with criminal law and sentencing in which a question has undoubted importance, in which the circuits do not split (often due to the anti-defendant "snowball effect"), and in which the opinions of the circuits, or a cursory comparison of those opinions with opinions of the Supreme Court, will suggest sufficient uncertainty in the result to warrant review.

My own hobby-horse in this area is, of course, the federal good-time statute, 18 U.S.C. ยง 3624(b), which determines the actual amount of prison time that 95% of all federal prisoners will serve. Ten circuits have held that this statute is "ambiguous," that is, that it is not clear how much time Congress intended prisoners to serve. This situation clearly indicates the presence of an issue with both the degree of importance and the degree of uncertainty that should warrant consideration by the Court, even if the circuits have, by various kinds of reasoning, uniformly found ways to rule against the prisoners. Questions like these are questions that the Court ought to entertain, or at least ought not dismiss out of hand as not presenting a "conflict."

Posted by: David Lewis | Dec 7, 2006 11:04:36 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB