Sunday, 4 February 2007

The Dominance of the Death Penalty on the Decreasing Supreme Court Docket

February 1, 2007 10:17 AM Posted By News Questions & comments 1

The Dominance of the Death Penalty on the Decreasing Supreme Court Docket

by Martin Magnusson, Editor-at-Large

The Supreme Court's docket has dramatically decreased in the past twenty years. When Chief Justice Rehnquist assumed leadership of the Court in 1986, it disposed of 175 cases. That number has steadily fallen. Last year, the Court disposed of only 82 cases.

Tom Goldstein recently noted on SCOTUSblog that we are “on the cusp of the greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history.”

The response was immediate. Many began proposing reasons for the downward trend. Some contended that the decline was due to the Solicitor General's office, which has a solid track record of having its cert petitions granted, filing much fewer petitions. Other argued that it reflected a deeply divided Court. While some pointed to Congress passing fewer complex statutes, others pointed to the cert pool procedure that the Court uses. Some contended that the declining docket reflects the comity of a judiciary predominantly appointed by Republican administrations.

Although many different reasons for the decline were proposed, one thing is indisputable: the legal blogosphere was buzzing!

While the shrinking docket is of profound importance, an equally important issue is the composition of that reduced docket. The Supreme Court has focused a great deal of its recent attention on the death penalty. Indeed, on January 17, the Court heard three death penalty cases. This is a substantial number, especially in light of the current docket size. Even more interesting, each of the three cases were from the state of Texas. Linda Greenhouse hinted at the narrowness of these cases when she noted that on January 17

the Supreme Court . . . resumed its long-running effort to monitor the use of the death penalty in Texas, hearing arguments in three cases that put the strains and internal contradictions of the court’s capital punishment jurisprudence fully on display.

The prevalence of death penalty cases, and of Texas death penalty cases in particular, on the Supreme Court docket raises several important questions. One of those questions is whether that docket is filled with criminal cases that have no impact on the vast majority of American inmates. Prof. Berman recently distilled the issues surrounding recent capital cert grants into five discreet questions:

1. Has SCOTUS essentially decided that, in all capital cases, it will be in the business of error correction (at least when a federal court appears to have wrongfully overturned a state death sentence)?

2. Especially if SCOTUS plans to be in the business of capital error correction, what's happened to the device of summary reversal? In Brown, notably, the petition requests a summary reversal. Though I've not checked the data, I think we've seen fewer summary reversals this Term along with fewer cert grants.

3. Even if the Court cannot resist the lure of capital cases, why not tackle cases with broad impact like the standards for lethal injection or the procedures for implementing Atkins?

4. Does the Court realize that, because only a few states in the entire nation have a truly functioning death penalty, its ultimate decision in Brown, whatever it is, likely won't impact more than a handful of cases in a handful of states?

5. Is the cert grant in Brown yet more evidence, along with all the other recent docket struggles, that it is time for Chief Justice Roberts to drain the cert pool and start seriously exploring other case selection protocols?

Written By:Michael r. Hadley, Esq. On February 3, 2007 10:40 PM

The reason for so few Cert Petitions being granted is that a liberal majority knows better than to bring things to the Court to deny. The only issues that will come before this extremely conservative Court are those issues that split the conservative majority and somewhat appeal to the liberals.

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