Burdens and responsibilities of the Supreme Court justices.
The workload of the Supreme Court can be measured in part by the number of filings, or cases it is asked to decide. Filings rose from 51 in 1803, to 723 in 1900, and to 2,296 in 1960. By 1970 the number of filings had almost doubled, reaching 4,212. In 1990 the number of filings rose to 6,316, and in 1999 the number of cases topped 8,000. The workload may also be measured by the expanded burdens and responsibilities of each of the associate justices and the chief justice.
The number of filings increased because of population growth, the greater complexity of the United States’ political, economic, and social systems, and congressional legislation that provided new bases on which individuals, interest groups, and governments could bring legal actions to federal courts, subject to appeal to the Supreme Court. Other factors include the Court’s defining of new individual rights and new expansions of and limitations on government power through interpretation of the Constitution and its amendments.
In the first half of the nineteenth century, filings increased because of population growth, territorial expansion, and incremental growth in federal regulation. In the second half of that century, the Civil War, Reconstruction, industrialization, and the emergence of large corporations were primary sources of legal conflict that swelled the numbers of filings. In addition, the jurisdiction of federal courts was greatly expanded to include civil rights, habeas corpus appeals (appeals by citizens who argue their arrest is illegal under the Constitution), and an increase in the number of federal questions raised by the actions of states with the passage of the Fourteenth Amendment. The nationalization of the economy led to an increase in the number of cases that came to federal courts because parties who were from different states could go to federal court to resolve their problems. These are called diversity of citizenship cases.
In the early twentieth century, filings increased because of population growth, war contract cases, suits against the government, and congressional legislation and administrative regulations that made it easier for governments and special interest groups to appeal directly to the Court. In addition, Congress granted businesses the right to challenge government administrative decisions under expanding and more intricate antitrust and interstate commerce laws.
Over the years Congress responded to the increased demand for Supreme Court action by limiting the types of cases that could be brought to federal courts and possibly be appealed to the Court and by expanding the number and complexity of courts below the Court, such as the tax court and intermediate circuit courts of appeals. Congress hoped that the demand for court action to settle conflicts among parties could be met below the Supreme Court. For example, in the Judiciary Act of 1891, Congress created intermediate federal appellate courts between the district courts and the Supreme Court, initially called circuit courts of appeals.
To meet what was perceived as a severe workload problem for the Court, Congress enacted the Judiciary Act of 1925
Another major response to the increased number of filings was to make the process through which the Court decides to hear cases more efficient, thus reducing the time that individual justices spent deciding which cases deserved Court action. This was accomplished by introducing the cert pool in 1972. Writs of certiorari are pooled and distributed among the law clerks of the participating justices. Each filing is read by a single law clerk, who writes a certiorari memo, which is circulated to all the justices who have contributed law clerks to the cert pool. Typically, each justice asks one of his or her clerks to read these memos and make recommendations. The Court also established procedures to reduce the number of frivolous in forma pauperis petitions from indigents who seek release from jail.
In the 1970’s and 1980’s the number of law clerks, secretarial staffers, and supporting administrative staffers, such as research librarians, was significantly increased, and computerized word processing became more commonly employed. In the 1940’s under Chief Justice Harlan Fiske Stone, justices had one clerk, and the chief justice had two. Under Chief Justices Fred M. Vinson and Earl Warren, most justices had two or three clerks, and the chief justice had an additional clerk or two. Under Chief Justices Warren E. Burger and William H. Rehnquist, most justices had three or four clerks, and Burger had five and Rehnquist three.
With innovations in the processing of filings, increases in Court staffing, and the virtual abolishment of mandatory appeals, the number of filings may no longer be the most valid indicator of workload. A more useful way to think about the Court’s workload may be to consider the burdens placed on the justices by the complex and time-consuming process through which cases are decided and opinions are written. The Court has nine justices, as it has since 1837, except for a few years in the Civil War decade.
When the Court decides to take a case for oral argument and written decision, justices must read briefs, attend oral arguments, hold conferences to discuss cases and vote, and write the institutional, usually majority, decision of the Court, as assigned by the chief justice. Justices also write concurring and dissenting opinions. Institutional, concurring, and dissenting opinions are circulated among the justices for their suggestions of changes in a time-consuming process in which justices seek support from fellow justices for their positions on the constitutional questions in a particular case.
Some scholars, notably David M. O’Brien, theorize that the Court’s workload increased dramatically because of the decline in the institutional norm of consensus in Court decision making. After the 1940’s, the number of unanimous institutional decisions declined, and the number of concurring opinions increased ten times. The number of dissents grew four times, and the number of separate opinions in which justices explain their personal views and why they partially concur in or dissent from the Court’s opinion is seven times higher. In the 1990’s, justices wrote twice as many opinions as they did fifty years ago.
However, while the number of opinions written by the justices increased, the number of cases taken for full oral argument and written signed opinions dramatically declined in the 1990’s. In 1935 the Court decided about 150 cases on their merits. In the October, 1986, term, with a far larger number of filings, the Court decided only 145 cases on their merits. After 1986, as the number of cases on the Court’s docket increased, the number of cases heard and decided by written opinions declined to 112 cases in the 1990 term, 84 in 1993, and 75 in 1995. However, the number of separate, concurring, and dissenting opinions continued to remain very high in the 1990’s. In effect, the Court reduced its workload by reducing the number of cases it hears for oral argument and full written opinions. Some scholars argue the Court is taking too few cases to meet the increasing number of conflicts among the lower courts as to what the Constitution, state and federal law, and individual rights mean in a growing, diverse, more complex nation.
Whether workload is viewed as a problem for the Court has changed over the years. In the 1970’s and 1980’s scholars such as Philip Kurland and Dennis Hutchinson argued that the Court’s workload radically reduced the quality of its reasoning and the clarity of its decisions because of reductions in the time that the justices could debate, come to a compromise, and write decisions. They based their view on the opinion that the Court should make more unanimous or near unanimous decisions to ensure that it sends clear signals to lower courts, lawyers, governments, and all possible litigants. However, other scholars disagree with the view that the quality of Court decisions has deteriorated. They argue that such concerns about the quality of decisions have always existed and are either not valid or based on subjective standards of evaluation.
Many reforms have been proposed to meet the Court’s workload problems. These have included a call by the 1971 Study Commission on the Caseload of the Supreme Court for a national court of appeals to select cases for the Court to review and a recommendation by the 1972 Commission on the Revision of the Federal Court Appellate System that a national court of appeals be set up to resolve intercircuit conflicts on cases recommended by the Court or U.S. courts of appeals. In 1983 Chief Justice Warren E. Burger supported legislation to establish an experimental intercircuit tribunal of the U.S. courts of appeals, consisting of judges drawn from the current courts of appeals to sit for a specified period of years to decide cases referred to it by the Court. In 1990 the Federal Courts Study Committee urged Congress to give the Court the authority, for an experimental period, to refer cases involving unresolved intercircuit conflicts to a randomly selected court of appeals sitting en banc (as a full bench), whose findings would be binding on all courts except the Supreme Court.
None of these reforms have taken place, perhaps because the Court is unlikely to want to relinquish its power to determine what cases it will decide. The addition of another tier of federal appellate courts or the establishment of a means through which petitions for action by the Court are sent to existing circuit courts of appeal might actually increase delay and reduce the clarity of the Court’s decisions and interpretations. Such reforms also would reduce the power and authority of the Court and weaken its position as the apex of a hierarchical legal system, as the final decider of constitutional questions.
Given that the Court already introduced many internal reforms without undermining in a significant way the process of deciding which cases to take and the justices, like members of Congress and presidents, have a responsibility to continue the Court’s power and authority under the doctrine of separation of powers, few additional external reforms may be possible. Given the history of reform efforts and the respect for the principle of separation of powers among members of all branches of government, the justices will have to approve any significant changes in the structure of the Court to meet workload problems, something they have not been willing to do throughout the Court’s existence.
Joan Biskupic and Elder Witt’s The Supreme Court at Work (2d ed., Washington, D.C.: Congressional Quarterly, 1997) is an overview of the workings of the Court. Other useful overviews of Court workings include Timothy Russell Johnson’s Oral Arguments and Decision Making on the United States Supreme Court (Albany: State University of New York Press, 2004), Maxwell L. Stearns’s Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making (Ann Arbor: University of Michigan Press, 2000), Drew Noble Lanier’s Of Time and Judicial Behavior: United States Supreme Court Agenda-Setting and Decision-Making, 1888-1997 (Selinsgrove, Penn.: Susquehanna University Press, 2003), and The Supreme Court in Conference, 1940-1985: The Private Discussions Behind Nearly Three Hundred Supreme Court Decisions, edited by Del Dickson (New York: Oxford University Press, 2001). David M. O’Brien’s Storm Center: The Supreme Court in American Politics (7th ed., New York: W. W. Norton, 2005) and “Join Three Votes, the Rule of Four, the Cert. Pool, and the Supreme Court’s Shrinking Plenary Docket,” Journal of Law and Politics 13 (1997): 779-808, are excellent analyses of the process of Supreme Court decision making with particular emphasis on the effect that the decline in adherence to the principle of unanimity and consensus has had on the workload problem. Richard Posner’s The Federal Courts: Challenge and Reform (Cambridge, Mass.: Harvard University Press, 1996) superbly links the caseload problem to problems in the overall federal court system. Philip Kurland and Dennis Hutchinson’s “The Business of the Supreme Court, O.T. 1982,” University of Chicago Law Review 50 (1983): 628-651, offers a critical analysis of how workload pressures affect the quality of Court decisions. H. W. Perry, Jr.’s Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, Mass.: Harvard University Press, 1991) explains workload issues in the light of reforms in the process through which the Court chooses cases for action. Finally, Lee Epstein, Jeffrey Segal, Harold J. Spaeth, and Thomas G. Walker’s The Supreme Court Compendium: Data, Decisions, and Developments (3d ed., Washington, D.C.: CQ Press, 2003) is the best source on the number of filings and other statistics on the workload of the Supreme Court.
Cert pool
Certiorari, writ of
Chief justice
Circuit courts of appeals
Clerks of the justices
Concurring opinions
Decision making
Dissents
Oral argument