The head of Stanford’s Supreme Court Litigation Clinic, Jeffrey Fisher, raises a very important point. It may take five votes to win at the Supreme Court, but it takes four votes just to make it on the docket. And the right/left split is 6-3, leaving the liberal/progressive side one vote shy of  a certiorari grant.

Why does this matter? Because the rule of law requires the court to do more than simply adhere to precedent when deciding cases. It also requires the court to reprimand lower courts when they refuse to follow Supreme Court decisions. If it doesn’t, those rulings are in danger of becoming dead letters, precedents that lose their force without being overruled.

What we lawyers delightfully call “circuit splits” may be mere disagreements between circuit courts of appeal on the interpretation or application of law, or may be a wayward circuit telling the Supreme Court it doesn’t care for its opinion and what are you going to do about it? We saw this with the Second Circuit on gun cases, where the court pretty much refused to apply Heller and MacDonald for years while gun case after gun case was denied cert, until the Supreme Court took up Bruen. What Fisher calls dead letters, I call constitutional orphans, decisions of huge consequence that the Supreme Court failed to back up when the circuits chose not to follow precedent.

Since the 1980s, the court has had almost entirely discretionary jurisdiction. It virtually never has to hear cases. It is almost always a choice whether to allow a lower federal court or a state supreme court to have the last word regarding a dispute. The court need not give reasons for granting or denying review or even disclose its vote tallies on whether to do so.

And indeed, the Supreme Court has availed itself of this exercise of discretion in taking increasingly fewer cases, essentially leaving a nation waiting for a final word on critical issues that remain in flux until the Court finds time between writing brutally long opinions and taking very nice vacations on someone else’s dime.

But for the past couple of generations, the rule of four appears to have worked quite well. Even though the court has consistently had a conservative majority, there has also been a steady band of four of the nine justices who could force cases — and, in doing so, issues — onto the docket. Sometimes the issues were big. Think, perhaps, of the case of Obergefell v. Hodges and the right of same-sex couples to marry. More often, the cases were relatively low-profile — lower court decisions refusing, for example, to apply civil rights protections that are already established.

Either way, the outnumbered liberal wing of the court had enough votes to require the court to expend its resources to hear and decide cases. And here’s the thing: In many of those cases, the court ultimately reversed by an overwhelming vote. The lower court decisions were indefensible.

In the past, there was a fairly squishy middle to the Court, often hinging on the lone justice who decided the law when the split was four to four and the law became whatever Justice Anthony Kennedy decided the law would be. But with a 6-3 division replacing the 4-1-4 division back when, the majority has the ability to pick any case, and hence any issue, it feels inclined to decide while leaving the gang of three, Justice Sotomayor, Kagan and Jackson, one vote short of getting the cases they want decided onto the docket.

But for the court to reverse a lower court decision refusing to honor a civil liberty, the case first has to be put on its docket. And that seems no longer to be happening in cases involving established rights favored by the liberal wing of the court.

In support of this proposition, that the Supreme Court “seems no longer” to put cases where lower courts are failing to honor precedent, Fisher proffers two examples, one of which includes his own client. Of course, two examples doesn’t prove much of anything, and even if it did, there are a great many reasons why a case that is flagrantly wrong and seems to demand review fails to get cert. Often, it’s just a bad vehicle for review, either because of odd facts or a inadequate record.

But examples aside, are the three left wing justices and the issues that concern them frozen out of the cert process and denied the opportunity to use their bench to right bad circuit decisions? The right wing cohort of six isn’t quite as reliable a voting bloc as most seem to think. Over the course of the past couple years, Chief Justice Roberts and Justices Kavanagh and Gorsuch have broken from the majority when the issue at hand piqued their interest. Heck, even Justice Thomas occasionally found himself in the company of the left wing. It’s neither as clear nor certain as Jeffrey Fisher argues that the 6-3 split will never let the three left wing justices get their cases before the Court.

On the other hand, the occasional seduction of a right wing justice to the dark side to be the fourth vote for cert shouldn’t be such an outlier, agonizingly hard to get and shocking when it happens. Granted, control of the docket is a prize won by the right wing when the Senate affirmed Justice Amy Coney Barrett to take a supermarjority of the Nine.

Fischer’s point, however, is right that the docket can’t be limited only to the right wing’s favored issues and ignore circuits that ignore precedent, refuse to apply the law as held by SCOTUS and feel that they will almost certainly get away with it because the Supreme Court won’t take up the case. Part of the legitimacy of the judiciary is that errant district courts and courts of appeals will get the spanking they deserve when they stray from Supreme Court precedent. It’s SCOTUS’ duty to administer that spanking, even when it’s not an issue on the right wing’s agenda.