The new term of the Supreme Court begins next Monday, and as usually happens, lawyers and academics will gaze and gush over their pontifications, because it is the Supreme Court, a branch of government unto itself and, if not infallible, definitely final.
But there isn’t much discussion, amidst the gushing and fawning, of the fact that the Supreme Court is doing one exceptionally poor job of things. As Jeff Gamso graphically shows, they’ve grown lazy.
Now some numbers.
The numbers are the number of full opinions, after briefing and oral argument, issued by the 9 Justices for each of those years. You’ll notice a big drop, from 143 to 91 between 1989 and 1994. And you’ll notice that it’s not an anomaly. For about the last 30 years, the Court has been hearing and deciding only 50-60 percent as many cases as it did in the previous decades.
And, to add insult to slovenliness, they used to produce with three law clerks, and now they get four. On the bright side, the number of words murdered in opinions has ballooned, with hundred plus page decisions common as compared to, say, an earth-shattering opinion such as Brown v. Board of Ed., which managed to fundamentally change a nation in an eleven page decision. Of course, that was before computers killed brevity.
And it’s not just the quantity, but the quality that has failed us. Under the guise of “judicial modesty,” the Supremes have taken the path of deciding no more than is absolutely necessary to address the issue for which cert was granted. Modesty is such a nice word, so what’s not to like?
The Supreme Court of the United States is the final arbitrator of constitutionality. It’s purpose is to provide the courts of our nation, and hence the people of our nation, with clear guidance as to what the law is. The Supreme Court has failed to do so.
It’s like a tease, taking cases and leading us on to believe that we will finally get some answers to questions that plague the courts. And then, a bunch of words that may (or may not) resolve one question, but leaves us with a bunch of new questions to flesh out the rule. In other words, we are no better off after the case is decided then we were before.
The problem arises when the Supremes tweak a piece of the puzzle, because only that piece is at issue in a particular case, but do so in a manner that gives rise to a bundle of new questions, new changes, that the Court leaves to lesser courts to figure out. This, to be kind, is utter bullshit. Fixing one problem by making a dozen more is not the way a branch of government should do business.
But this aspect of the problem only relates to the Supremes giving partial guidance, and leaving the messy details of how their pontifications should actually happen in the trenches. Lawyers and judges will burn a million hours trying to figure out what the oracles meant when they say something should change, but not exactly what or not exactly for whom.
There is a very different quality issue as well: the one where they say one thing but, years later, inform the legal system they were only kidding.
Consider Booker, its antecedents and its progeny. How many decisions did it take for the Supreme Court to finally get district and circuit judges to accept the premise that the Sentencing Guidelines were, indeed, only advisory and not mandatory. What of the thousands and thousands of defendants who were sentenced while the rules had purportedly changed but no one cared?
Putting it in context, Booker sought to undo a congressional scheme that had been held unconstitutional by every court across the country until the Supremes held the Guidelines constitutional in Mistretta in 1989. If they were merely advisory, wouldn’t it have been a better idea to say so 20 years ago?
What kind of perverse system allows the Supreme Court to tell the entirety of the judiciary, who operated as slaves to a grid for two decades, that they got it all wrong? Who gives back the million days lost in prison to defendants sentenced to Draconian terms of imprisonment because judges believed they had no choice? Was this a joke of the sort that Wild Bill Douglas made when he wrote Brady v. Maryland, knowing full well that he was yanking the chain of every defendant when they got this huge win, but without any means of making it work in a way that could actually serve its purpose?
The Supreme Court of the United States got back to business yesterday, with what’s known as its “long conference,” where it votes on petitions for certiorari, deciding what cases are worthy of their very important time. The long conference is something of a sink hole, covering the petitions filed since they went on vacation, did TV appearances, book tours, interviews, enjoyed the adoration of America for their huge importance.
Because the new clerks, baby lawyers (who write up memos upon which the justices make their calls) are gun shy, they fear recommending too many cases for cert and burning through too much of a term’s tiny caseload in one shot. So, they recommend fewer cases for cert than at any other conference, and accordingly, there is a decidedly worse chance of getting the nod. As the New York Times calls it, it’s where appeals go to die. So what if the cases actually matter?
And yet, come next Monday, as they ascend their big bench, resplendent in their robes of power, we will be back to fawning over their every utterance because nobody has the guts to tell them they’re a bunch of slackers. How did it come to pass that one branch of government, and only one, doesn’t consider its duty to be one of public service? Because if the justices of the Supreme Court understood that they aren’t big deals, but just a bunch of lawyers who are supposed to serve a function in our legal system, they wouldn’t do such a shitty job of it.