Judicial Minimalism Taken to the Max

When Chief Justice Roberts was confirmed last year, he indicated that he expected the Court to expand its docket. But last Wednesday, the justices of the Supreme Court did not take the bench at all because, although the Court had set aside the day for oral arguments, it had run out of cases to hear this month. Linda Greenhouse of The New York Times addressed the question that has puzzled many commentators. Why is the Court agreeing to hear so few cases?

"The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s. And aside from the school integration and global warming cases the court heard last week, along with the terrorism-related cases it has decided in the last few years, relatively few of the cases it is deciding speak to the core of the country’s concerns. "

Greenhouse offered several possible explanations for this phenomenon:

• The federal government is losing fewer cases in the lower courts. As a result, the government, from which the Supreme Court frequently accepts cert petitions, has filed fewer petitions. (Hmmm... might this have something to do with Bush-appointed appellate judges who are highly deferential to the government, even at the expense of individual rights?)
• Congress has been enacting fewer statutes, so there are fewer statutes for the Court to interpret.
• Justices who are concerned that their view won’t prevail may vote not to hear a particular case.
• The justices may be concerned about making an unpopular decision that further divides the nation.

According to Greenhouse, the justices themselves profess bewilderment at this development, and claim that the reason they have accepted so few cases is because they have only seen a small number that meet their criteria.

Whatever the reason, we worry that an increasingly passive Supreme Court will allow more bad decisions by the courts of appeals -- which are now dominated by Republican judges -- to stand. (On the other hand, with a solid conservative majority on the high court, we're not sure that our rights are any better protected there either.)