Posted by Orin Kerr:
Goldstein on the Current Court and the Supreme Court's Docket:
http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190236723
Over at [1]SCOTUSblog, Tommy Goldstein makes some very thoughtful
points about the the previous and upcoming Supreme Court Terms. In
particular, he makes some quite perceptive comments about the
presently fashionable claim that we now have a consistently
conservative Court:
[T]he characterization of this Court is part caricature and is
deeply dependent on the near-accident of the particular cases that
are decided in any given Term. Although the era in which true
liberalism was an ideological force on the Court (e.g., Brennan,
Marshall, and Douglas) is now over, this is manifestly not a period
of conservative hegemony. Like Justice O'Connor, Justice Kennedy's
commitment to any ideological world view is too fragile for either
wing of the Court to have genuine confidence in the outcome of an
entire Term's worth of cases. And moreover, many important cases
are not decided on ideological grounds or by five to four
majorities.
I think that the existing and anticipated docket strongly
suggests that, during OT2007, the outcomes of the highest-profile
cases will be perceived as quite liberal. As a consequence, I think
it is exceptionally unlikely that next Term will end as this one
did, with front-page stories and reports leading the evening news
describing the Court as profoundly conservative, with laudatory
commentary by the right and howls of protest from the left.
Instead, we will see (mistaken) talk of the "surprising" tack by
the Court back to the left and (among the legal glitterati) the
"good Kennedy, bad Kennedy" phenomenon in which his ideological
views seemingly oscillate dramatically from Term to Term. In fact,
this commentary will be wrong: the Justices and their views will be
exactly the same come June 2008; it is the cases that will be
different.
I think Tommy is exactly right. The key driving the current Court is
its cert practices: How the Court goes depends on which cases the
Court takes. In the Warren Court era, the Justices looked for cases
that would help them move the law where they wanted. The Warren Court
took lots of cases, and they used those cases to change a lot of law.
They didn't need splits, or in some cases even a relevant decision
below.
Today the picture is quite different. Today the Justices are
remarkably focused on lower court splits; the Court sees its primary
role as resolving lower court uncertainty on legal questions that have
spent a lot of time percolating below. This means that the Supreme
Court's docket is actually set mostly by lower court judges rather
than coalitions of the Justices. Lower courts decide whether to create
a split, and that split is what prompts Supreme Court attention. (If
you're thinking that might create room for some tactical
split-creation below, well, yes it does.) As a result, the direction
of the Court is defined by where the Justices are on the specific
issues where the lower courts divide. This tends to lead to a much
smaller docket as well as much less predictable trends in the
direction of caselaw from year to year.
References
1.
http://www.scotusblog.com/movabletype/archives/2007/09/a_true_rightwar.html
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