Taking Care of Business

The Supreme Court tackles fewer cases by the year. SCOTUSBlog’s statistics as reported by First Mondays Podcast show that the Court has also been slower in writing signed opinions this term than in recent terms. What is leading to these changes? One clear anomaly from the Court’s norm is the length of time the Court has been without a ninth Justice. While this vacancy is the longest in recent memory it is not the longest historically. Still the Court’s workload seems to be declining over time and without other clear rationale aside from the Court’s composition to explain the downward trend.

The Federal Judiciary Center provides statistics on the number of cert petitions and cert grants every term. As the following figure shows petitions to Court have risen over time but recently declined a bit from their height in 2006.


At the same time the number of granted petitions has dropped from 159 in 1981 to as few as 63 in 2011.


While cert is not the only way that cases may arrive to the Supreme Court, it has been the primary vehicle especially in recent years. Appeals have declined due to the limited instances where they are currently mandatory.

The chart shows this steep decline from a high of fifty-seven granted appeals in 1970 to a low of zero for the 2000, 2003, 2004, and 2010 terms.

Although individuals also seek to get their matters to the Court in other ways, the Court is even less likely to grant cases through those mechanisms. This term, individuals filed forty-seven writs of mandamus (orders directing a lower court to act in a certain manner). Even though individuals still submit these petitions, a search showed that the last time the Court even granted a writ of mandamus was in 1962 in the case of United States v. Haley. In that case though the Court noted after granting the writ that it would wait to order the formal writ so that the District Court could rectify its decision in the matter without the Court’s added intervention. The last time the Court clearly issued this writ in a written opinion was in the 1918 case of Ex Parte Simmons.

Another rarely granted writ is the writ of habeas corpus. The Court generally rules on habeas corpus decisions from the lower court, but there are also a number of habeas petitions to the Court each term. Fifty-one such writs were filed so far this term.

A writ less often currently filed before the Court is the writ of prohibition which prevents a lower court from continuing to hear a case due to lack of jurisdiction over the matter. This term two such petitions were filed. The Court’s last clear grant of a writ of prohibition was in the 1921 case Ex Parte In The Matter Of The State of New York. In that case the Court underscored the exigent circumstances under which that writ is appropriate:

“The want of authority in the District Court to entertain these…is so clear, and the fact that the proceedings are in essence suits against the State without its consent is so evident, that instead of permitting them to run their slow course to final decree, with inevitably futile result, the writ of prohibition should be issued as prayed.”

Plenty of petitions for rehearing are filed each term, also mostly without success. 232 petitions for rehearing have already been filed this term.
Since the beginning of the term, the Court granted forty-three more petitions for writs of certiorari and granted, vacated, and remanded twenty-three cases to their respective lower courts. The Court also denied cert in at least 3,930 cases so far this term (an approximately 1% grant). It also denied stays in fourteen instances while granting them in five.
Although the number of cert petitions to the Court have remained fairly stable over recent terms, in many instances one or more of the Justices do not participate in cert decisions. Last year, Fix the Court reported 176 instances where a Justice recused him or herself from a cert decision and there have been at least eighty-six instances where Justices recused themselves from cert decisions this term.

Granting cases, however, does not necessarily secure cases on the Court’s docket. The two means the Justices have used in recent years to eliminate cases from their merits docket have been dismissals of cases as improvidently granted (DIGs) and Rule 46 dismissals when the parties agree to settle the case. So far this term the Court decided three cases by DIGs and one under Rule 46. Over the past several terms there has been little consistency to the use of this practice as this practice is truly case dependent.

Even though not a full dismissal, the Court engaged in potentially the most publicly recognized removal of a case from its docket this term when it remanded the transgender bathroom case, Gloucester v. GG back to the lower court based on the Trump Administration’s differing stance on the issue from the previous administration’s position.

This all leads to the question of what will happen to the Court’s workload moving forward? Without a specific impetus, the Justices are unlikely to take on more cases annually. Cert petitions are unlikely to drop substantially and may rise with the addition of a new Justice to the Court. While the Court may spend substantial time dealing with these petitions, a lingering question will continue to be how the Justices have reallocated their time as the Court’s caseload has decreased.

  • One other noted statistic is that in eighteen instances the Court directed the Clerk not to accept additional pro-se petitions from certain petitioners. The Court did so with the language “the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required by Rule 38(a) is paid and the petition is submitted in compliance with Rule 33.1.”
  • Counts based natural language processing of Supreme court orders from the 2016 term through March 6, 2017. These are approximations based on this methodology and so may have missed instances where the Court used different language than it typically uses in these instances.

On Twitter: @AdamSFeldman

One Comment Add yours

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s