Does Docket Size Matter? Revisiting Empirical Accounts of the Supreme Court's Incredibly Shrinking Docket

29 Pages Posted: 31 Mar 2020 Last revised: 4 Jun 2020

See all articles by Michael Heise

Michael Heise

Cornell Law School

Martin T. Wells

Cornell University - Law School

Dawn M. Chutkow

Cornell Law School

Date Written: May 18, 2020

Abstract

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon's work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.

Keywords: Court, litigation, empirical, docket

Suggested Citation

Heise, Michael and Wells, Martin T. and Chutkow, Dawn M., Does Docket Size Matter? Revisiting Empirical Accounts of the Supreme Court's Incredibly Shrinking Docket (May 18, 2020). Notre Dame Law Review, Vol. 95, No. 4, 2020, Cornell Legal Studies Research Paper No. 20-24, Available at SSRN: https://ssrn.com/abstract=3565279 or http://dx.doi.org/10.2139/ssrn.3565279

Michael Heise (Contact Author)

Cornell Law School ( email )

308 Myron Taylor Hall
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Martin T. Wells

Cornell University - Law School ( email )

Comstock Hall
Ithaca, NY 14853
United States
607-255-8801 (Phone)

Dawn M. Chutkow

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
607-254-5096 (Phone)

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=471

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