Mimesis Law
5 August 2020

SCOTUS: Half the Work, Twice the Fun

Sept. 28, 2015 (Mimesis Law) — First some years:

  • 1974
  • 1979
  • 1984
  • 1989
  • 1994
  • 1999
  • 2004
  • 2009
  • 2014

Those are terms of the Supreme Court. (Each term begins, officially, at the beginning of October and lasts for 12 months.) The “October 2014 Term” is about to end, though for most purposes it’s been over since the end of June when the Court issued its final opinions for the term and the judges took off for their summer vacations.

Now some numbers.

  • 142
  • 143
  • 159
  • 143
  • 91
  • 79
  • 85
  • 77
  • 68

The numbers are the number of full opinions, after briefing and oral argument, issued by the 9 Justices for each of those years. You’ll notice a big drop, from 143 to 91 between 1989 and 1994. And you’ll notice that it’s not an anomaly. For about the last 30 years, the Court has been hearing and deciding only 50-60 percent as many cases as it did in the previous decades.

It’s not an accident.

The Court is asked to hear something like 9,000 cases each year. The 9 Justices have almost complete freedom to decide which of them they’ll take in. (In the legal biz, we call it granting cert.) If 4 of them want to grant cert, it’s in. If there aren’t 4 votes, cert is denied. Look at the numbers. The Court is hearing only about 1% of the cases it’s offered.

That’s not entirely nuts. They couldn’t hear and decide them all if they wanted to. And they shouldn’t want to. Many, maybe most, are somewhere between trivial and frivolous. But even if you knock out a few thousand that way, they folks in the robes still have an awful lot to choose among.

They do the choosing in secret conferences, and as Jeff Fisher explained in an op-ed in the Times the other day, the votes are secret, too, and that can be something of a problem.

There’s another problem. The judge’s don’t read the petitions for cert. The practical problem is part of it. There’s just so much time and there are some 9,000 of those suckers a year. At one time, in the distant past, each of the judges had one of his clerks wade through the stack and make recommendations. For decades, that hasn’t been the way. Instead, 8 of the 9 participate in a cert pool. Rather than every judge having a clerk review all the petitions, the work is pooled (hence the “cert pool”) so that only one clerk reviews any petition and makes a recommendation to the 8 folks in the pool. Only Alito has his clerks review all the petitions for him. The result is that instead of 9 recommendations about whether a case is cert worthy, there are only 2.

Today, the Justices will meet in what’s called “the long conference” and decide what to do with each of the 2,000 or so petitions that have accumulated over the summer. If history’s a guide, they’ll agree to hear maybe 12 or 13.

Okay, you’re bored. I don’t blame you. If you haven’t fallen asleep yet (or abandoned this post), you’re surely wondering why you should care about any of this and what the fuck it has to do with criminal law.

There’s actually a real – and serious – answer. Unfortunately, it requires another bit of background.

Most criminal cases, the vast majority, are brought in state courts. Convictions are appealed through state courts. The federal courts get involved only after the state’s highest court has ruled (or declined to rule) on a federal constitutional claim. Unless the case falls into that 1% the Supreme Court takes in right then (and remember, well over half those cases are civil, not criminal, the only federal review, the only time the federal courts get to apply the Constitution, is on a collateral review, in habeas corpus.

And there’s the rub.

Because habeas (“the Great Writ” they still call it and pretend it’s a powerful tool to protect constitutional rights) is pretty much an empty promise.

You can blame the Supreme Court which has worked assiduously to eviscerate it. But first blame Congress which passed, and Bill Clinton who signed, the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).

There are two pertinent rules.

  1. Folks in habeas cannot benefit from a new rule.
  2. Habeas courts can only grant relief if the state courts clearly and egregiously either ignored or misapplied controlling Supreme Court precedent.

And so.

Consider autopsy reports in homicide cases are deemed testimonial. If they are, they can’t be admitted at trial without the coroner coming into court and taking the stand to be cross-examined. But if autopsy reports are prepared for epidemiological purposes (to trace the severity of e-coli deaths, say), then their use in murder cases is incidental, and there’s no need for the coroner to come in and testify. All that’s according to the Sixth Amendment.

Ohio says that bullets don’t matter. Oh, sure, it’s clear that the guy was shot to death and the coroner did the autopsy and prepared the report knowing it would be used at trial if there was one. And sure, that would usually mean that the report is testimonial and the coroner has to testify. But no. Ohio says (and it’s not alone in saying this) the autopsy and report weren’t really for the murder trial. Really, they were to see if e-coli or lung cancer caused those bullet holes. Which is stupid, but hey, that’s what Ohio’s supreme court says.

And in case after case, from state after state, the Supremes have been asked to answer the question because it makes a real difference in real cases and in case after case (including the one I linked to) they’ve refused to answer the question because “error correction” is not their job.

Which would be fine, except that it means there’s no controlling law from the Supreme Court. Which means that federal courts can’t fix what’s an obviously stupid and unconstitutional decision from the Ohio Supreme Court. And while the lower federal courts can’t fix it, the Supreme Court won’t. Because the defendant bringing the claim couldn’t benefit from a new rule even if the Court decided he was right.

And so the law freezes.

In the October 1974 term, when the Court issued 142 full opinions, there were 9 Justices. Most of them had 3 clerks to help them research and draft opinions. The Justices finished their opinions and left for vacation at the end of June.

In the October 2014 term, when the Court issued 68 full opinions, there were 9 Justices. They each had 4 clerks to help them research and draft opinions. The justices finished their opinions and left for vacation at the end of June.

In 1974, our prison population was a fraction of what it is today. In 1974, there were far fewer laws than there are today for people to break.

And in 1974, the Court did twice the work that it does today.

Kinda makes you wonder.


The numbers for the1974-2009 terms is from the Federal Judicial Center. The number for the 2014 term is from Scotusblog.

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