Coin-Toss "Justice:" Case of the Dwindling Docket Mystifies the Supreme Court

It looks like Random House simply lucked out at the Supreme Court rather than prevailing because of something more substantial.

The New York Times has an interesting article today (free but annoying login required) on how the current Supreme Court has accepted 40 percent fewer cases this year than last year, leading to court days when they have run out of cases and have nothing to do but twiddle beneath their robes.

No one knows why. It's not like there's a lack of appropriate cases.

"The most important of those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts," writes the NYT.

"But there are still plenty of lower-court conflicts that go unresolved, said Thomas C. Goldstein, a Supreme Court practitioner and close student of court statistics who wrote last week on the popular Scotusblog that the justices were 'on the cusp of the greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history'.”

“'I don’t think we’re at the end of history and have fixed all the problems,' Mr. Goldstein said in an interview."

"One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail.... While such behavior may account for a portion of the shortfall, it can hardly provide a global explanation, because only a relative handful of the 8,000 appeals that reach the court each term are ideologically charged."

Lazy, Timid Law Clerks to Blame?

"Another possible explanation is the method by which the justices screen the thousands of petitions. Eight of the justices, all except Justice John Paul Stevens, pool their law clerks and have only one clerk make the initial recommendation for each case.

The recommendation is not binding, of course. But there is a built-in “institutional conservatism” in which law clerks are afraid to look overly credulous and so are reluctant to recommend a grant, according to Stephen M. Shapiro, a former deputy solicitor general who practices law in Chicago with Mayer, Brown, Rowe and Maw.

“'Perhaps the clerks have been trained to be naysayers for so long that they don’t know any other way,' Mr. Shapiro said in an interview."

Justice Denied

Whatever the cause: lazy Supremes or their clerks, it's clear that they have not upheld their constitutional responsibilities as the ultimate arbiters of justice. Perhaps coin-toss justice is the wave of the future.