The Supreme Slackers

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.

  • 142
  • 143
  • 159
  • 143
  • 91
  • 79
  • 85
  • 77
  • 68

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 Rothgery decision is a perfect example.  It has generated mass confusion, leaving commentators all over the place as to what it’s supposed to mean 

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.

12 thoughts on “The Supreme Slackers

  1. Charles

    Dissenting, in part. I join the opinion of the Blog insofar as it notes the decreased number of full opinions and that such opinions have increased in length. However, the Blog fails to note the increase in the number of amicus briefs filed with each case, requiring a fourth clerk just to read those briefs. And if one disagrees only with subpart III(a) of the majority’s opinion, drafting a partial dissent or concurrence requires additional time. One person’s “lazy” is another person’s assurance that history will forever record their principled stand against the tyranny of the majority.

      1. Charles

        Harlan often dissented without opinion. A few of the current justices have “concurred in the judgment” without further explanation, but it has been two-and-a-half years since anyone tried that approach. Los Angeles Cnty. Flood Control Dist. v. Natural Res. Def. Council, Inc., 133 S. Ct. 710 (2013) (“Justice Alito concurred in the judgment.”). This likely is tied into your reply to Bartleby: the lengthier the full opinion, the greater the likelihood another justice will be compelled to dissent at least in part (a principle that also applies to blog comments?).

        1. SHG Post author

          Whatever. This is one of those comments that could possibly have a point, but isn’t worth the effort to make sense of it.

  2. Eliot Clingman

    …. Because of Acton’s maxin ‘ power corrupts…:. The combination of a 1 very difficult constitutional amendment process, 2 stare dicisis 3 judicial review of legislation and 4 finality of three virtually begs for corruption.

    I have no proposed solution for this problem… It’s a big flaw of the original constitution.

  3. Bartleby the Scrivener

    I think this is the blog post of yours I love the most (even though it makes me even more of a curmudgeon than I was before).

    You led me to look up Gideon v. Wainwright. My PDF of it is 8 pages long. I checked a few of my other favorite cases and found them to be similarly short. Those cases gave clear instruction, gave what I think is clear and broad-based guidance, and answered the question asked of them.

    I don’t mind the extra verbiage, but I mind the lack of guidance and the narrow focus of the rulings…but how can this trend be reversed? It seems to me that they’re not likely to be swayed by public pressure on this issue, and I don’t think political pressure is appropriately applied to them.

    (As always, I am speaking as a non-lawyer, and therefore an ignoramus…but I’m an ignoramus that’s hoping to learn something from time to time…*grin*)

    1. SHG Post author

      The more words, the greater the likelihood of confusing rhetoric. Say what you mean, mean what you say. If the Court is going to establish a test, spell it out. And don’t then revisit the test with 26 more formulations using every word in the thesaurus.

      It’s not just that the decisions were shorter, but they were concise.

      1. Keith

        This comment nails it. And when there are concurrences without pluralities, it’s even worse.

        I sat through a meeting last night to redesign a sign ordinance and we have no clue what to do with the Reed decision. A room of lawyers and legislators all having read it with no consensus on how to re-draft our code.

        When the decisions deal with taking away a person’s freedom and liberty, the stakes are too high just to wait for another decision after lower Courts pretend they can read all the tea leaves as if they are instructions.

        Thanks SCOTUS, job well not done.

  4. Dan

    “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?”

    I can think of one other branch of government that is AT LEAST as lazy and unproductive as the Supreme Court.

    [The Executive kind of gets a pass because besides the State of the Union, the only thing he (or she) really HAS to do is exist.]

    1. William Doriss

      And supremely irrelevant in today’s world where three years to get a decision of non-cert. is too long. (You have the “right” to petition the sovereign, but you do not have the right to be “heard”–says it all in a nutshell.)
      The one “branch” of govt. which is weaker and less productive than the Congress. If they should all choose to hang themselves in unison, would that branch be strong enough to hold them?

      There was once Dred Scott v. Sanford, and the rest is history, Roger Taney-breath. Three days max, or fuggeddaboudit. Babe Ruth is my favorite,…. excuse me, Ruth Bader. And yet,… they keep writing books about the Supremes, as if they were as interesting as the CIA or the FBI. They are not! How many of these books do we really need? Justice Robert’s rules of order bore me to tears.

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