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Wednesday, December 01, 2010

Seeking thoughts about the SCOTUS docket in the CJ Roberts era

With thanks to Dan and the other permanent members of the Prawfs family, I am so very pleased to have a guest stint here in order to discuss topics beyond the sentencing issues that are my obsession on my blog.   Though I suspect sports and the holiday season may be the subject of some future posts, I am especially eager to use my guest stint to generate discussion in the PrawfsBlawg universe about the federal judiciary and especially about (1) the first 5 years of the Roberts Court, and (2) the early work of Obama judges.

As the title of this post reveals, I want to start by seeking thoughts about the size and nature of the Supreme Court docket during the early Roberts era.  I recall the Chief Justice during his 2005 confirmation hearing suggest that the Court's docket had shrunk a bit too much during the prior decade.   But, as this chart from SCOTUSblog reveals, the number of SCOTUS decisions over the last five years has been largely in line with the prior five.   Though I doubt there is a perfect size for the SCOTUS docket, I do feel that it might benefit the work of the Court if it took more cases (and then perhaps wrote less when resolving some them).

Even more important than the number of cases, of course, is the type and posture of the cases that SCOTUS takes up.  In this arena, I feel and fear that the Justices continue to worry too much about resolving circuit splits and not quite enough about issues that could benefit from greater jurisprudential clarity.  But my opinion here is likely colored by my sentencing obsessions and the many cert petitions I see coming from federal criminal defendants raising issues that have not produced a crisp split but that, in my view, merit SCOTUS attention.

In future posts on this topic, I may explore in greater detail some of the developments in the criminal justice  side of the SCOTUS docket that I have noticed in the Roberts era.  For now, though, I would like to hear what others think about these modern SCOTUS docket matters.

Posted by Douglas A. Berman on December 1, 2010 at 07:59 PM in Judicial Process | Permalink


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I think it would be great if, as others have proposed, the lower courts could certify a specific number of cases that the Supreme Court would be required to hear. Even better if each circuit court were required to certify a few cases.

Regarding my field, important tax cases seem to get short shrift from the justices, even though many important tax problems could benefit from Court guidance and even when appellate courts bemoan the lack of certainty in this area.

Perhaps everyone believes that the Court pays too little attention to his specific field, but I think the number and proportion of tax cases decided by the court has dropped significantly in the last few decades. Also, I think the Supreme Court is generally more favorable to taxpayers than the circuit courts, and that probably plays a part in why the SG almost always argues against granting cert, even when the practitioner and academic community believe that Supreme Court involvement is warranted.

Posted by: andy | Dec 2, 2010 4:37:09 PM

This was discussed in another post (at Prawfs or somewhere else, I forget), but the Roberts Court has a renewed interest in First Amendment matters, particularly on free speech. Not sure what is driving this.

Posted by: Howard Wasserman | Dec 1, 2010 11:17:05 PM

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