In one sense, Monday was a noisy news day at the Supreme Court. It handed down decisions in six cases, including yet another challenge to Obamacare, which the court essentially punted, sending the challenge back to various federal appeals courts. But in another sense, it was a day as quiet as Clarence Thomas during oral argument. The court agreed to hear exactly zero new cases, continuing to set a sparse stage for its next term, which may see the lightest caseload in its already-light recent history. So far, only 12 cases are on the court’s docket for the October 2016 term, which runs through June 2017.1 That number is far below the pace that we averaged in the 1980s and ’90s. And if the first few months of the year are an indication, the upcoming court term may be the lightest in at least 70 years.
The long, downward trend in the court’s caseload began around 1980, when it routinely heard over 150 cases a term. These days, it hears about half that many. In 2014, the court heard 71 cases, the fewest since at least World War II, according to the Supreme Court Database. Now that record looks in danger of falling.
The court still has ample time to add cases to next term’s docket — indeed, it often adds many between May and October — but its pace of granting cases for next term is lagging, as the adjacent chart, based on data from SCOTUSblog’s Kedar Bhatia, shows. Over the past five terms, the court had added nearly 18 cases to the next term’s docket by this point in May, on average. Thus far this term, they’ve granted just 12.
A few years ago, The New York Times’ Adam Liptak rounded up many explanations for the long-term phenomenon: Maybe it’s been the fault of new justices; their clerks; Congress for not passing confusing laws; the Justice Department for appealing less often; or the cert. pool for allowing young gunners to eviscerate what they see as undeserving cases. The most striking plausible explanation, Liptak wrote, is simply that the quintet of new justices who joined the court starting in 1986 — Justices Antonin Scalia, Anthony Kennedy, David Souter, Thomas and Ruth Bader Ginsburg — were far less eager to vote to hear new cases than were their predecessors. (It requires the votes of four justices for the court to hear a case.)
That Scalia is no longer on the court is the latest theory. If there’s such a thing as a lame-duck Supreme Court, we’re witnessing it now. But the justices are lame ducks by their own choosing. “The [Obamacare challenge] ruling was the latest indication that the eight-member Supreme Court is exploring every avenue to avoid 4-to-4 deadlocks,” Liptak wrote on Monday. Its reluctance to grant certiorari — simply put: its reluctance to hear cases — may well be another, and one that explains this year’s potentially historic drought.
Not only are fewer cases likely to be heard next term, but the ones that will be heard lack the gravity of cases in recent years. How to treat separate parcels of land doesn’t quite have the same country-defining import as the constitutional right to same-sex marriage. In addition to a long-term trend, the current short-handed court seems keen to take fewer and fewer, and less marquee, cases to avoid 4-4 ties.
The reasons for the most recent slowdown “boiled down to a reluctance of the ideologically divided eight-member court to take on an issue in which it might not be able to provide a clear answer,” Robert Barnes wrote early this month about an expert panel convened by the Constitutional Accountability Center.
And the drought may last a while. The Senate’s inaction toward Merrick Garland, whom President Obama announced in March as his nominee to replace Scalia, shows few signs of ending. It could be spring before the Senate holds confirmation hearings and the court has its full nine justices again. In other words, it could be spring before the court returns to its (still historically light) caseloads.