The Shrunken Docket of the Rehnquist Court

Abstract

From 1971 through 1988, the United States Supreme Court was hearing and deciding about 150 cases each Term. Since the mid-1990s, however, the number of plenary decisions each Term has generally ranged between 75 and 85. How can we explain the shrunken docket? To answer that question, we must identify the changes that have taken place in the cases selected for plenary review and analyze them in a systematic fashion.

In this article, I compare the composition of the plenary docket during the three most recent Terms (1993 through 1995) with the docket 10 years earlier. Using these data, I test five hypotheses that have achieved special prominence, including some that have been endorsed by one or more Justices. They are:

1. The virtual elimination of the Supreme Court's mandatory appellate jurisdiction allows the Court to deny review in some cases that would have received plenary consideration under the pre-1988 regime.

2. After the retirement of its three most liberal Justices, the Court took fewer cases in which lower courts had upheld convictions or rejected civil rights claims.

3. Twelve years of Reagan-Bush judicial appointments brought greater homogeneity to the courts of appeals, resulting in fewer intercircuit conflicts that the Supreme Court had to resolve.

4. The Federal Government was losing fewer cases in the lower courts and therefore filed fewer applications for review in the Supreme Court.

5. The 12 years of Reagan-Bush appointments made the courts of appeals more conservative, resulting in fewer "activist" decisions of the kind that a conservative Supreme Court would choose to review.

None of these hypotheses fully explains the shrunken docket. Rather, the data suggest that the Justices who joined the Court starting in the mid-1980s took a narrower view of the Court’s role than did their predecessors. The result is an “Olympian Court” that is often detached from the work of lower courts – an aloofness that poses a threat to the effective performance of the Court’s role in the American legal system.

Keywords: Supreme Court, Olympian Court, federal courts, Rehnquist Court, certiorari, plenary docket, plenary decisions, appellate jurisdiction, courts of appeals

JEL Classification: K40, K41