The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation

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INTRODUCTION

The decline in the Supreme Court's plenary docket over the past thirty years has puzzled commentators. A number of hypotheses for the decline have been advanced in the scholarly literature, including the impact of the cert pool, (1) Congress's elimination of most of the Supreme Court's mandatory appellate jurisdiction, (2) greater homogeneity in the personnel of lower federal courts, (3) a reduction in the number of cases in which the United States has sought plenary review from the Court,(4) and changes in personnel on the Supreme Court. (5) Investigation of the latter hypothesis has been hampered by the limitations of available data, particularly for the Terms of the Supreme Court in which the most drastic declines in the plenary docket have occurred, such as from 1992 to 1993 when the number of opinions of the Court declined from 114 to 87, the greatest single-year percentage drop since the October 1953 Term of the Supreme Court. (6)

This Essay develops support for the hypothesis that changes in the Court's membership have contributed to the decline in the Supreme Court's plenary docket. The unique dataset contains the certiorari votes of all Justices for every case between October Term 1986 and October Term 1993 in which one or more Justices voted to grant certiorari or join three other Justices in doing so. (7) The data and figures in this Essay demonstrate that personnel changes have had an impact on the decline in the Supreme Court's plenary docket.

I. THE SHRINKING PLENARY DOCKET

The recent decline in the Supreme Court's plenary docket is extraordinary. The Court's plenary docket reached a modern high of 167 Opinions of the Court in October Term 1981, but has since declined to a modern low of 70 in October Term 2007, a 58% reduction in the number of cases decided by the Court. The transformation of the plenary docket coincides with a period of rapid personnel turnover on the Supreme Court. In contrast to the unprecedented lack of any turnover on the Supreme Court from October Term 1994 to October Term 2005, five new Justices joined the Court between 1986 and 1993. The following five personnel changes occurred: (1) Antonin Scalia for Warren Burger in 1986; (8) (2) Anthony Kennedy for Lewis Powell in 1987; (3) David Souter for William Brennan in 1990; (4) Clarence Thomas for Thurgood Marshall in 1991; and (5) Ruth Bader Ginsburg for Byron White in 1993. Given that the high turnover rate coincides perfectly with acceleration in the decline of the plenary docket, it is unsurprising that some scholars have speculated that membership changes have caused or at least contributed to the decline. (9) Indeed, in October Term 1986, the Court issued 152 Opinions of the Court, but by October Term 1993, that number had declined to just 87. Figure One graphically displays the trend.

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II. THE EFFECT OF CHANGING MEMBERSHIP

The most direct method of determining whether membership changes have contributed to the declining plenary docket is to look at the individual votes of Justices on a Term-by-Term basis. (10) Fortunately, Justice Harry Blackmun kept meticulous records, including docket sheets containing the certiorari votes for every Justice while he served on the Supreme Court. Accordingly, the Blackmun papers provide crucial voting information from the period of greatest decline in the plenary docket from 1986 to 1993.

Several limitations for the data must be recognized at the outset. First, although the individual votes of Justices are coded by docket number in the dataset, the aggregate data presented in this Essay do not indicate the types of cases on which certain Justices voted to grant certiorari. Peggy and Richard Cordray have noted, for example, that Justices Brennan and Marshall voted to grant review in a greater number of criminal cases in which the petitioner proceeded in forma pauperis. (11) In other words, the subtle nuances in aggregate voting patterns by each individual Justice are not captured in this Essay. …