A Diminished Plenary Docket: A Legacy of the Rehnquist Court

By O'Brien, David M. | Judicature, November/December 2005 | Go to article overview

A Diminished Plenary Docket: A Legacy of the Rehnquist Court


O'Brien, David M., Judicature


The Rehnquist Court's diminished plenary docket was neither the result of the chief justice's leadership nor of a strategic, collective decision, but rather the consequence of a number of internal and external factors.

A major legacy of the Rehnquist Court (1986-2005)will remain a sharply diminished plenary docket. During the Burger Court years (1969-1986), the justices granted and disposed by written opinions on average 175 cases per term. In William H. Rehnquist's first term as chief justice, the Court likewise disposed of 175 cases. But during the course of his chief justiceship, the number of cases granted plenary review (full briefing and oral arguments) sharply declined and the Court came to decide only about 78 cases per term.

The diminished plenary docket, however, was not due to Chief Justice Rehnquist's leadership, even though he is credited with expeditiously running the justices' private conference discussions. Nor was it the result of a conscious and collective or strategic decision. Like other political branches, the Court has an institutional life of its own and the conduct of its business registers a mix of internal and external forces. As Justice David H. Souter observed in the mid-1990s, "nobody set a quota; nobody sits at the conference table and says, 'We've taken too much. We must pull back.' . . . It simply has happened."1

Instead, the diminished plenary docket reflects the interplay of a combination of changes in the Court's decision-making process, composition, and institutional norms. External forces may have contributed as well. Justice Souter, for example, suggested that the conservative appointees to the lower federal courts by Republican Presidents Ronald Reagan and George H.W. Bush produced "a diminished level of philosophical division within the federal courts from which so much of the conflicting opinions tend to arise."

No less importantly, the 1988 Act to Improve the Administration of Justice significantly expanded the Court's discretionary jurisdiction. Virtually all non-discretionary appellate jurisdiction was eliminated, and the Court's capacity to manage its plenary docket and workload increased. Still, the plenary docket remains ultimately determined by the Court's internal decision-making processes and the justices' power to decide what to decide.

Historical perspective

The Rehnquist Court's diminished plenary docket is striking in historical perspective. In the latter half of the twentieth century, particularly since the late 1960s, the number of annual filings and the size of the total docket grew phenomenally. (See Figure 1) The Warren Court (1953-1968) decided on average 110 cases per term, or about 4.5 percent of its docket, which grew from 1,463 cases in 1953 to 3,918 in the 1968 term. The Burger Court granted and decided between 2 and 3 percent, or on average 175 cases per term, from a docket that rose from a little more than 4,000 cases to 5,268 cases. By comparison, the Rehnquist Court's plenary docket declined from 2.9 percent to less than one percent of its total annual docket-a docket that in the meantime swelled from slightly more than 5,000 cases in the 1986 term to more than 9,400 cases.

Given the increasing number of cases annually arriving, even if the justices had continued deciding at least 150 cases per term, the percentage of cases granted full consideration would have, of course, declined. Yet, the plenary docket declined to the point that the Rehnquist Court decided far fewer cases from a much larger number of annual filings than during the chief justiceships of Warren E. Burger and Earl Warren. Figure 2 shows the decline in the percentage of cases granted and decided from the total docket during the Burger and Rehnquist Courts.

The "workload problem"

Ironically, the Rehnquist Court's diminished docket registers in part the inflation of the Burger Court's plenary docket. From the outset of his tenure, Chief Justice Burger was preoccupied with the rising caseload, the Court's declining supervisory capacity, and the justices' "workload problem. …

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