Wither {Sic} the Supreme Court?

By Andrews, James H. | The Christian Science Monitor, September 27, 1993 | Go to article overview

Wither {Sic} the Supreme Court?


Andrews, James H., The Christian Science Monitor


THE United States Supreme Court will open its doors again next week on the traditional first Monday in October. But to hear some people talk, you almost expect to see a going-out-of-business-sale notice on the court's marble steps.

No one goes that far, of course, but some court watchers say the justices are disengaging from the great issues of the day.

They point to the declining number of cases on the high court's docket. During the 1992-93 term, under Chief Justice William H. Rehnquist, the court decided 107 cases, down nearly one-third from the 150 or more cases decided each year between 1953 and 1986 under Chief Justices Earl Warren and Warren Burger.

Beyond mere numbers, some observers also contend that the Supreme Court is lowering the octane in its caseload. The justices, they say, are reviewing fewer cases dealing with combustive social and political issues, notably discrimination and affirmative action. Rather, in this view, the court is focusing on narrow statutory interpretation or on fine-tuning constitutional doctrine in largely settled areas of the law.

Those experts who perceive that the justices are pulling back from the breastworks offer several explanations:

* Cycles of history. According to this theory, the comparative lull in the Supreme Court's workload is not attributable to any policy adopted by the justices so much as to the ebb and flow of great issues. After more than three decades during which the American experience heaved turbulent issues at the court, history is at low tide. Prof. Barry Friedman of Vanderbilt Law School in Nashville, Tenn., who studies the historical interactions among the three branches of the federal government, says, "We're at the end of an era, and we're all waiting to see what the next era brings."

* A conservative court, part I. Bruce Fein, a court watcher and columnist in Washington, notes that, after 12 years during which Republican presidents appointed generally conservative judges to the lower federal courts, "fewer cases coming up from the appellate courts are at odds with the thinking of the Supreme Court's conservative majority." As President Clinton appoints more federal judges around the country, Mr. …

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