WEBVTT - The Incredible Shrinking Supreme Court Docket

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<v Speaker 1>This is Bloomberg Law with June Bresso from Bloomberg Radio.

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<v Speaker 1>The Supreme Court is a secretive institution, but this term

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<v Speaker 1>the curtains seems to have been pulled back a bit

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<v Speaker 1>with not only the leak draft abortion decision, but also

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<v Speaker 1>signs of tension and distrust among the justices. The strains

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<v Speaker 1>of the ideological shift in the Court seeped into the

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<v Speaker 1>public in December from comments by Justice Sonya so to

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<v Speaker 1>Mayor during the abortion arguments. Will this institution survive the

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<v Speaker 1>stench that this creates in the public perception that the

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<v Speaker 1>Constitution and it's reading are just political acts. I don't

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<v Speaker 1>see how it is possible. And Justice Clarence Thomas posed

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<v Speaker 1>a similar question a few weeks ago after the leak.

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<v Speaker 1>I do think that the the what happened at the

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<v Speaker 1>Court is tremendously bad. I think it's um I wonder

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<v Speaker 1>how long we're going to have these institutions at the

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<v Speaker 1>rape where undermining them. Beyond the drama, there's the question

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<v Speaker 1>of just how productive the Roberts Court really is. When

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<v Speaker 1>the Justice is rise for their summer recess, they'll have

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<v Speaker 1>handed down only fifty nine decisions and argued cases. The

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<v Speaker 1>third year in a row, they failed to reach sixty decisions.

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<v Speaker 1>You have to go back to the Civil War to

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<v Speaker 1>find such a small donkeet. In fact, until the Court

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<v Speaker 1>used to decide more than a hundred fifty cases a year.

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<v Speaker 1>So what happened? Joining me to answer that question is

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<v Speaker 1>constitutional law experts Stephen Vladdock, a professor at the University

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<v Speaker 1>of Texas Law School. Steve, Before we get to the

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<v Speaker 1>number of decisions, I want to talk about the slow

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<v Speaker 1>pace of the court this term. The Supreme Court seems

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<v Speaker 1>to be a little off its usual schedule. For the

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<v Speaker 1>end of the term. It's got a heavier than usual

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<v Speaker 1>backlog of decisions to hand down. I believe that not

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<v Speaker 1>even half the cases for the term have been decided.

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<v Speaker 1>What's going on? Yeah, you know, can we just fit

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<v Speaker 1>the halfway mark on Wednesday? So the Court standed down

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<v Speaker 1>signed decisions in thirty argued cases. There are twenty nine

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<v Speaker 1>to go. What's going on? And I think a lot

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<v Speaker 1>of things are going on. I think, without questions, the

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<v Speaker 1>unprecedented leak of the draft majority opinion in the Job's

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<v Speaker 1>case in early May has, you know, had both the

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<v Speaker 1>direct and indirect effect on the Court's ability to finish

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<v Speaker 1>its business this term. I think the amount of high

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<v Speaker 1>profile cases the Court has handled this term on the

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<v Speaker 1>so called shadow doctor, these orders and applications that don't

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<v Speaker 1>go through plinary review, you know, those take time, and

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<v Speaker 1>I think that time comes from somewhere else. And I think,

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<v Speaker 1>you know, June's the cases the Court is given this

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<v Speaker 1>term are on average, more significant, more divisive, more contentionous.

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<v Speaker 1>And so you add those three things together and you've

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<v Speaker 1>got a court that Adam Feltman has pointed out had

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<v Speaker 1>a greater percentage of its cases still to be decided

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<v Speaker 1>on June one than at any point in the past,

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<v Speaker 1>for which there's data going all the way back to.

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<v Speaker 1>And the decisions that were handed down this week we're

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<v Speaker 1>not the ones that most people have been waiting for.

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<v Speaker 1>That's an understatement. You know, where's the missing in action

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<v Speaker 1>Second Amendment case that the justices seemed all but to

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<v Speaker 1>have decided against New York at oral arguments? Where are

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<v Speaker 1>the big cases? Yeah, I mean June. As you know,

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<v Speaker 1>the Court does tend to backlog the big cases that

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<v Speaker 1>you know, It's it's not uncommon for the last cases

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<v Speaker 1>we get the last couple of weeks of June, even

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<v Speaker 1>early July to not necessarily be the last cases that

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<v Speaker 1>we're arguing, right, but rather the ones are the most divisive.

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<v Speaker 1>And I think that's a reflection at least in part

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<v Speaker 1>of the gravity of the issues the justices are decided,

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<v Speaker 1>and I think of the tenor of the separate opinions.

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<v Speaker 1>I mean, you know, we saw just on Wednesday with

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<v Speaker 1>Justice of myors descent in this under the Radar case

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<v Speaker 1>about you know, a border patrol officer, some pretty sharp

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<v Speaker 1>accusation um directed towards the majority. And I think that's

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<v Speaker 1>only going to get more seeded as we get towards

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<v Speaker 1>the New York gun case, as we get towards the

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<v Speaker 1>abortion case, this really important climate change case West Virginius

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<v Speaker 1>cp A. So you know, I think we really are

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<v Speaker 1>in for however long it's going to be, whether it's

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<v Speaker 1>three weeks or a month or even six weeks, we

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<v Speaker 1>are in for a pretty rocky period of decisions from

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<v Speaker 1>the Supreme Court. And because of this backup, those decisions

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<v Speaker 1>are going to come right on top of each other

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<v Speaker 1>in pretty short order. Steve. Many court watchers have pointed

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<v Speaker 1>out that Justice is slow pace in handing down decisions

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<v Speaker 1>this term, but in an opinion piece. You point out

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<v Speaker 1>that for the last few years, the Court has been

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<v Speaker 1>handing down fewer to Asians than ever before, sort of

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<v Speaker 1>the incredible shrinking docket. Yeah, I mean, I think this

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<v Speaker 1>is to me almost a bigger story, maybe even a

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<v Speaker 1>bigger story than the fact that the Court just happens

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<v Speaker 1>to be behind this particular term. I mean, when all

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<v Speaker 1>of a sudden done, when the Court does eventually rise

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<v Speaker 1>for summer, recess's good to have handed down probably no

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<v Speaker 1>more than fifty nine science decisions and argued cases last

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<v Speaker 1>term June it was fifty six. The term before it

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<v Speaker 1>was fifty three, whereas before three years ago, the Court

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<v Speaker 1>hadn't dip below sixty of these signed Merritt decisions since

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<v Speaker 1>the Civil War. And this is part of a broader

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<v Speaker 1>trend where you know, as recently as the early two thousands,

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<v Speaker 1>the court was here to nine cases a year. In

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<v Speaker 1>the twenty tents, it was still seventy eight cases a year.

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<v Speaker 1>But really, since Justice Kennedy's retirement, the docket has fallen

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<v Speaker 1>into the low sixties, now the high fifties. And you know,

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<v Speaker 1>I think there are plenty of folks would say, great,

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<v Speaker 1>like if this court has less to do. That's not

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<v Speaker 1>going to bother them. But I actually think that there

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<v Speaker 1>are some longer term problems with the Supreme Court's docket

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<v Speaker 1>continuing to drink in disrespect in The Court used to

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<v Speaker 1>hear more than a hundred and fifty cases a year,

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<v Speaker 1>which seems astonishing right now. So what happened to drop

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<v Speaker 1>the number by about fifty cases almost overnight? So by

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<v Speaker 1>the mid eighties, there was still a large chunk of

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<v Speaker 1>the Court's appellate jurisdiction that was mandatory, meaning there were

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<v Speaker 1>cases that the justices had to pick up, especially appeals

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<v Speaker 1>from state courts, and largely at the justice's own request.

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<v Speaker 1>Congress in revisited that and gave the Supreme Court just

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<v Speaker 1>about plenary control over its docket. Congress five had really

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<v Speaker 1>expanded the practice of what we call sir ferrari of

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<v Speaker 1>discretionary review when the Supreme Court was reviewing the lower

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<v Speaker 1>federal courts in Congress expanded that to encompass most appeals

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<v Speaker 1>from state courts as well, And overnight we saw the

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<v Speaker 1>sharp drop off from a hundred and fifty cases a

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<v Speaker 1>year or two about nineties. That was a direct response

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<v Speaker 1>to what Congress had done. What I think is really interesting.

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<v Speaker 1>What I think is something has stopped being attention to,

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<v Speaker 1>is that since Congress hasn't listed a finger to touch

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<v Speaker 1>the courts docket, and yet it is this term going

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<v Speaker 1>to be probably around the size of the Court's docket

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<v Speaker 1>in the first years after Act. And so, you know,

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<v Speaker 1>I since there's a question worth asking about whether it's

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<v Speaker 1>healthy not just for the Court as an institution, but

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<v Speaker 1>for the court system, for the Supreme Court to be

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<v Speaker 1>decided in so few cases. So besides that congressional action

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<v Speaker 1>or inaction, what else is causing the Court to take

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<v Speaker 1>so many fewer cases? We don't know. I mean, as

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<v Speaker 1>part of the problem here is that becauses is all discretionary,

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<v Speaker 1>and becauses, you know, the court never tells us why

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<v Speaker 1>it is taken. We're not taking cases, you know, We're

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<v Speaker 1>less to speculate. But I do think there are a

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<v Speaker 1>couple of fairly obvious, at least circumstantial explanations. One is,

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<v Speaker 1>as we've discussed before, the Court is doing more and

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<v Speaker 1>more stuff through these unsigned, unexplained emergency orders on the

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<v Speaker 1>shadow doctors. That that's tacking up more of the Court's

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<v Speaker 1>attend in each term. I think also, since it takes

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<v Speaker 1>four votes to grant sir SERRAI, well, you know, since

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<v Speaker 1>Justice Kennedy retired in I think the Conservatives now can

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<v Speaker 1>be more confident about which cases they do and don't

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<v Speaker 1>want to take. Since Justice Ginsburg died, the Liberals now

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<v Speaker 1>don't have enough vote to force the granted sir sari

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<v Speaker 1>on their own. And you know, I think what I

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<v Speaker 1>do as the negative implications of the court here and

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<v Speaker 1>fewer cases, that there are fewer cases articulating a new

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<v Speaker 1>legal principles, that there are fewer cases establishing law that

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<v Speaker 1>can then be used in damages suits are inhavior's petition. Frankly,

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<v Speaker 1>I think the current majority probably isn't much bothered by So,

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<v Speaker 1>you know, if you add all these things together, I

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<v Speaker 1>think it's just some of the pressures that used to

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<v Speaker 1>lead the Court to take more cases have evaporated at

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<v Speaker 1>the same time as there are more and more demands

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<v Speaker 1>on the justices time from other parts of their caseload.

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<v Speaker 1>I found it very interesting when you pointed out that

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<v Speaker 1>when Justice Ruth Bader Ginsburg died there's no longer a

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<v Speaker 1>fourth vote for cases that the liberal members might want

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<v Speaker 1>to hear that might be important to them. Does that

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<v Speaker 1>mean it's making it easier for the Conservative members to

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<v Speaker 1>push any agenda they might have. Oh, I don't think

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<v Speaker 1>there's any doubt about that. And I think that's been true,

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<v Speaker 1>not just since eighteen. And I think you know, when

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<v Speaker 1>Justice Kennedy was the median vote on the Court from

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<v Speaker 1>two thousand six to two thou eighteen, there were any

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<v Speaker 1>number of cases where the Conservative justices, or at LEAs

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<v Speaker 1>some of them, would vote to deny certain even though

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<v Speaker 1>they disagreed with the lower courts. A really famous example

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<v Speaker 1>of this June is the marriage cases before Olburga fell.

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<v Speaker 1>There were this trench of early marriage cases where federal

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<v Speaker 1>Courts of Appeals had struck down state marriage bands, and

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<v Speaker 1>Chief Justice Roberts refused to provide a force of vote

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<v Speaker 1>to grant certain even though Aldo, Thomas and Scalia wanted to.

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<v Speaker 1>And you know, I think the wise pread assumption that

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<v Speaker 1>he didn't want to provide a force vote to grant

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<v Speaker 1>serve because he wasn't confident that Justice Kennedy would join

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<v Speaker 1>the Conservative So multiply that by you know, a hundred

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<v Speaker 1>cases a year, and we see how Justice Kennedy's mere

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<v Speaker 1>presence on the Court lad the Justice to be much

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<v Speaker 1>more careful abou which cases you wanted to hear, whereas

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<v Speaker 1>if Kennedy wanted to hear a case, then all of

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<v Speaker 1>a sudden was open season. During that moderating influence has gone.

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<v Speaker 1>And so if the Conservatives want an issue, they now

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<v Speaker 1>know that they have the vote, and so they can

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<v Speaker 1>grant the cases they want, they can ignore the cases

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<v Speaker 1>they don't want, and they don't have to worry about

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<v Speaker 1>alienating any justice in the middle, because there isn't one.

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<v Speaker 1>You point out that the drop into the sixties sixty

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<v Speaker 1>cases a term and now the fifties is a phenomenon

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<v Speaker 1>entirely of the last decade. So since Chief Justice Roberts

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<v Speaker 1>has been Chief Justice for longer than that, can we

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<v Speaker 1>place the blame in any respect on him? I mean,

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<v Speaker 1>I think that's the temptation these days to blame every day.

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<v Speaker 1>But I think on this particular one, the answer is no.

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<v Speaker 1>I mean, I think insofar as anyone agrees with me

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<v Speaker 1>that it's a problem that the Court is hearing so

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<v Speaker 1>many fewer cases, and thence that responsibility lies with all

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<v Speaker 1>of the justice is equally, and I think especially with

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<v Speaker 1>justices who repeatedly have the majority. I either conservatives. But

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<v Speaker 1>I think the larger problem here is not one of

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<v Speaker 1>the Court's own making, but rather of Congress's application that

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<v Speaker 1>what the statute was an example of was this long standing, consistent,

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<v Speaker 1>historical pattern where there was this ongoing dialogue between the

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<v Speaker 1>Supreme Court, lower federal courts, and Congress, where Congress was

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<v Speaker 1>regularly invested in studying the dockets of the federal courts

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<v Speaker 1>and figuring out where there was too much, where there

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<v Speaker 1>was too little, in tweaking things here and there. And

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<v Speaker 1>since nine, Congress has basically left all of that alone,

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<v Speaker 1>so much so that you know, there are a lot

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<v Speaker 1>of folks today who don't think it's appropriate for Congress

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<v Speaker 1>to be having conversations about regulating the Supreme Court's docket,

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<v Speaker 1>which would be quite a shock to the two years

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<v Speaker 1>of judges, justices and Congress members who had exactly that conversation.

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<v Speaker 1>So the key to me is, if folks agree that

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<v Speaker 1>there's something problematic about not just the drop in the

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<v Speaker 1>Court's caseload, but the control it leaves with the justices,

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<v Speaker 1>the answer is not for the justice to change their behavior.

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<v Speaker 1>The answers for Congress to think about whether there are

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<v Speaker 1>categories of case in which the Supreme courts jurisdiction really

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<v Speaker 1>should be mandatory, where the course you have to take

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<v Speaker 1>up appeal. It is hard to see Congress stepping in

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<v Speaker 1>and telling the Supreme Court what to do these days.

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<v Speaker 1>It seems just alien to this Congress. Well, and this

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<v Speaker 1>is the exact mindset that I think I'm you know

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<v Speaker 1>that I'm hoping to push back against, which is it

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<v Speaker 1>seems that way only because you know, Congress hasn't done

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<v Speaker 1>it recently, but you know, historically from the founding um

0:12:33.280 --> 0:12:35.960
<v Speaker 1>after the Civil War in the nineteen twenties, you know

0:12:36.040 --> 0:12:39.199
<v Speaker 1>that this was a conversation where Congress was not just

0:12:39.320 --> 0:12:41.960
<v Speaker 1>doing the Court's bidden but was a certain its own

0:12:42.120 --> 0:12:44.960
<v Speaker 1>authority as an independent institutional actor. I mean. The other

0:12:45.000 --> 0:12:49.120
<v Speaker 1>piece of the second Folks to Find Surprising Act, which

0:12:49.160 --> 0:12:52.760
<v Speaker 1>is very quietly the real turning point in the story

0:12:52.800 --> 0:12:56.040
<v Speaker 1>of the Supreme Court's rise to power. Act June is

0:12:56.080 --> 0:12:59.560
<v Speaker 1>known informally as the Judges Bill because it was basically

0:12:59.600 --> 0:13:02.800
<v Speaker 1>written and lobbied for by the Supreme Court, I mean

0:13:02.880 --> 0:13:06.480
<v Speaker 1>by then Chief Justice William Howard Taffs. So you know,

0:13:06.520 --> 0:13:08.960
<v Speaker 1>I think if we sort of take a slightly longer

0:13:09.000 --> 0:13:12.080
<v Speaker 1>look at the history here, we shouldn't be nearly as

0:13:12.480 --> 0:13:16.520
<v Speaker 1>troubled by the specter of Congress having more control over

0:13:16.559 --> 0:13:18.920
<v Speaker 1>the Court stock it, and we shouldn't be alarmed at

0:13:18.960 --> 0:13:21.040
<v Speaker 1>the notion that this is a conversation that the Court

0:13:21.520 --> 0:13:24.720
<v Speaker 1>and Congress should be having together. I want to divert

0:13:24.800 --> 0:13:28.080
<v Speaker 1>for a moment. As you know, Justice Clarence Thomas talked

0:13:28.120 --> 0:13:31.640
<v Speaker 1>about since the League mistrust at the Court having to

0:13:31.760 --> 0:13:34.800
<v Speaker 1>look over your shoulder, and now you have the arrest

0:13:35.400 --> 0:13:38.280
<v Speaker 1>of a man for trying to kill Justice Brett Kavanaugh.

0:13:39.000 --> 0:13:43.120
<v Speaker 1>Has the Court changed forever? And I think there's no

0:13:43.240 --> 0:13:47.040
<v Speaker 1>question that the events of the last few months um

0:13:47.320 --> 0:13:51.280
<v Speaker 1>have been a really significant inflection point in the Court's history.

0:13:51.320 --> 0:13:53.679
<v Speaker 1>I think the tricky part, as with any inflection point,

0:13:53.840 --> 0:13:57.240
<v Speaker 1>is you know, in an inflection point in which confection um,

0:13:57.280 --> 0:14:00.360
<v Speaker 1>has the Court changed forever? I don't doubt it had

0:14:00.400 --> 0:14:02.839
<v Speaker 1>the change in ways that are probably not for the better.

0:14:03.240 --> 0:14:05.559
<v Speaker 1>I suspect the answer is going to be yes. But

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<v Speaker 1>I also think that it's too early to tell, you know,

0:14:08.040 --> 0:14:10.960
<v Speaker 1>for now. One of the symptoms of that change is

0:14:10.960 --> 0:14:14.440
<v Speaker 1>how far behind the justices are and how frankly June unlikely.

0:14:14.480 --> 0:14:16.480
<v Speaker 1>I think it is that By the end of June,

0:14:16.520 --> 0:14:18.720
<v Speaker 1>they will wrapped up their business with thanks so much

0:14:18.760 --> 0:14:22.000
<v Speaker 1>for your insights as always, Steve. That's Professor Stephen Flattock

0:14:22.080 --> 0:14:25.400
<v Speaker 1>of the University of Texas Law School. And that's it

0:14:25.440 --> 0:14:28.040
<v Speaker 1>for this edition of The Bloomberg Law Show. Remember you

0:14:28.040 --> 0:14:30.520
<v Speaker 1>can always get the latest legal news on our Bloomberg

0:14:30.640 --> 0:14:34.200
<v Speaker 1>Law Podcast. You can find them on Apple Podcasts, Spotify,

0:14:34.400 --> 0:14:39.440
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0:14:39.840 --> 0:14:42.440
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:14:42.480 --> 0:14:45.600
<v Speaker 1>week night at ten b m. Wall Street Time. I'm

0:14:45.680 --> 0:14:48.119
<v Speaker 1>June Grosso and you're listening to Bloomberg