Deliberate Deliberations

February 05, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Ten years after hitting its peak amid complaints about working at that pace, the Supreme Court has slowed enough that the current term will bring the fewest decisions in more than 30 years.

A few months after a prominent lawyer, former Solicitor General Kenneth W. Starr, spoke disparagingly of the court's "embarrassingly skimpy docket" at its last term, the court is doing even less -- and, so far, taking more time to do it.

When the justices finished the first half of their present term last month, they had turned out 13 final rulings -- less than half the pace of 29 rulings a year ago. Three justices accounted for nine of those 13 decisions. Three colleagues had not yet written an opinion.

The court's newest justice, Ruth Bader Ginsburg, was not lagging behind her colleagues in her first term. A seasoned federal appeals court judge before being promoted, she produced three opinions for the highest court -- matched only by Chief Justice William H. Rehnquist, who has been on the court for 22 years, and Justice Sandra Day O'Connor, a 12-year veteran.

Producing none so far: Justices Antonin Scalia, David H. Souter and Clarence Thomas. Presumably, they have cases assigned to them from among the 53 the court has heard, because opinion chores generally are divided evenly.

The court is in a four-week recess. Justices Scalia and Ginsburg have been using part of that time for a good-will trip to India.

The court's spokeswoman, Toni House, said there would be no comment on the pace and volume of its work this term.

The court tends to put off much of its final opinion-writing until late in each term, focusing more on preparing for and holding hearings. But the hearings load is lighter this year, because fewer cases have been granted review. Still, with more time to write opinions, the court has done fewer, issuing rulings in 25 percent of the argued cases so far, compared with 44 percent a year ago.

When the justices close up shop in June, they are expected to leave behind 87 decisions. The last time the output was lower was 1962 (85 rulings). The 87 expected decisions in the current term would settle 102 total cases (because of overlaps) -- the lowest load in nearly a half-century.

The caseload is mostly a matter of choice. Although the justices have no say on which issues are brought to them in appeals, they have nearly complete control over which ones to consider and how to process them. Each year, the court's main goal is to decide before summer all the cases it has heard since October.

The court usually becomes controversial for the kinds of rulings it makes. But from time to time, its workload can stir debate, at least among lawyers and scholars.

A decade ago, the justices themselves took to public forums to complain of the burdens of their docket and to ask for help. In 1983 and 1984, when the court was setting decision-making records, it made 151 decisions in each term, resolving more than 180 total cases a year. That was a workload, now-retired Justice William J. Brennan Jr. once remarked, that "taxes human endurance to its limits."

Most of the justices were calling for creation of a "mini-supreme court" to take some of the work off their hands. There has been no talk of a mini-court for years.

But the workload is causing talk again among court observers. The most critical has been the highly respected ex-solicitor general, Mr. Starr. In two public forums and in a Wall Street Journal column last fall, he argued that the court was doing a poor job of picking its cases and was reviewing too few.

He continued the criticism yesterday, based on what the court has done so far this term. "The court's docket is a precious national resource, and it is considerably underutilized," Mr. Starr said in an interview. This is now "a clear and continuing trend," he added, and the court needs to "examine its duties to the law."

If the trend continues, he warned, "sooner or later, Congress is going to be less receptive to pleas" that the court keep sole control of its docket. In the past, Congress has required the court to hear some cases, and could do so again, he speculated.

Other analysts say the court's diminished decision-making effort not a problem. As they see it, the justices are not ignoring major legal questions and are not intentionally "rationing justice."

"My sense is that there is not any evidence that they're shirking their duties," said Samuel Estreicher, a New York University law professor and co-author of a major study of the court's workload.

While he, like other observers, criticizes the court for sometimes picking cases that don't seem important, Mr. Estreicher says the court is not looking for "new areas of the law to influence; this is not an activist court."

Moreover, he says, there is closer harmony philosophically between a conservative Supreme Court and lower courts dominated by judges chosen by Republican presidents.

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