Last Look

John G. Roberts, Jr., served as a clerk for the man he is succeeding as chief justice of the United States and won 25 of the 39 cases he argued before the Supreme Court. As the 109th justice and 17th chief justice, however, he will find a big difference along with the familiar: He joins a court with a much smaller caseload than he encountered a quarter century ago when he clerked for then-Justice William H. Rehnquist. During the chief justiceship of Warren E. Burger (1969-86), the court decided on average 175 cases per term from a docket of about 5,000 cases. By contrast, the Rehnquist court (1986-2005) came to grant only about 78 cases each term from a docket hovering close to 9,000.

The diminished plenary docket (cases granted oral arguments) was neither due to Chief Justice Rehnquist’s leadership, nor due to a collective or strategic decision. As Justice David H. Souter observed, “Nobody set a quota; nobody sits at the conference table and says, ‘We’ve taken too much.’” External forces, such as 1988 legislation expanding the court’s discretionary jurisdiction and capacity to manage its docket, may have contributed. Still, the diminished docket ultimately reflects a combination of changes in the court’s decision-making process, composition and institutional norms.

Ironically, the diminished docket registers in part the inflation of the Burger Court’s plenary docket. Chief Justice Burger was preoccupied with the court’s “workload problem,” which as a young lawyer in Ronald Reagan’s administration Roberts dismissed as due to the justices’ own lack of self-restraint. A majority of the justices were nonetheless persuaded in 1970 to cut oral argument time from an hour to 30 minutes per side, nearly doubling the number of cases that could be granted.

Chief Justice Burger also persuaded a bare majority of justices to pool their law clerks and to have them write memos on each case, recommending whether to grant review. The four most senior and liberal justices (Justices William O. Douglas, William J. Brennan, Potter Stewart and Thurgood Marshall) refused to join and charged that cases would receive inadequate review from inexperienced clerks. Some justices also began filing and joining dissents from the denial of review in order to flag those cases involving conflicts among circuit courts that appeared to demand resolution. The dissents were strategic, because other justices might reconsider granting them and since only four justices are needed to grant review.

Coincidently, the voting practice when granting cases changed. Chief Justice Burger and some others began casting “Join-3 votes” instead of simply voting to grant or deny review. A Join-3 vote is a vote to provide a fourth vote if three others vote to grant; otherwise it is considered voting to deny. That lowered the threshold for granting cases, thereby weakening the rule of four and contributing to the inflation of the docket.

After Rehnquist’s elevation to chief justice, the plenary docket gradually declined as justices who frequently cast Join-3 votes retired and were replaced by Justices Antonin Scalia, Anthony Kennedy, Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer.

The clerk pool may have contributed to the shrinking docket in other ways. With the exception of Justice John Paul Stevens, every new justice in the past 30 years joined the pool. With eight justices participating, the pool became institutionalized and central to establishing the docket.

Finally, along with the court’s changing composition came changes in institutional norms. In the last 30 years, every new member, with the exception of Justice Sandra Day O’Connor, was elevated from a federal appellate court. Like Roberts, they had experience with the repetitive litigation of the same issues and were more inclined to defer issues to later cases than were those previously sitting on the high bench. In other words, cases raising intercircuit conflicts must now run “deep,” posing substantial conflicts among more than two of the 13 federal appellate courts.

In sum, the court’s docket was inflated during the Burger Court years and deflated during the Rehnquist Court as a consequence of the expansion of the justices’ power to decide what to decide, the greater role of law clerks, and changes in the composition and institutional norms of the Court. The diminished docket conserves institutional resources and allows the Court to delay addressing some controversies, though not to avoid ruling on major conflicts.

Chief Justice Roberts joins a Court less concerned about correcting injustices below or in supervising the stability and uniformity of the law. And although you may still “take your case all the way to the Supreme Court,” the likelihood of its being heard is increasingly slim.