Odds of Winning on Appeal
Campaign Contributions, Bribery, and the First Amendment

Should the Supreme Court Get Busy?

Jason Mazzone, blogging at Concurring Opinions, asks: "Why does the Supreme Court accomplish so little?"  He continues:

Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.

As someone who lives in the Ninth Circuit (and as someone generally sympathetic the outcome of 1983 and crim pro cases in the Ninth), I am happy the Supreme Court is institutionally lazy.  In any event, the problem isn't with the number of cases; it's with case selection.  The Court is obsessed with the minutiae of capital cases while ignoring other major sentencing issues (say Booker retroactivity, which affects tens of thousands of people).  And the Court is obsessed with crim pro cases in general.

Here's what seems to be ruining the Court's docket (I say "seems" because the court's voting on what cases to review is kept secret): The liberal justices keep voting to grant cert. on very narrow death penalty-related issues in an effort to attack the death penalty at the margins.  If other very important cases dealing with very unjust sentences go unreviewed, so be it.  Then you have the conservative justices, who keep voting to grant cert. in an effort to attack the Fourth Amendment at the margins.  Hudson v. Michigan and Randolph v.Georgia - both state court opinions - each address very narrow Fourth Amendment issues.  There was no compelling need for the Supreme Court to review these issues, especially considering the dozens of other big issues that needed addressed. 

But so long as the liberals are obsessed with narrowing the application of the death penalty, and the conservatives are obsessed with narrowing Fourth Amendment protections, the Court will have poor case selection.  Even if the Court reviewed more cases, it would still just review the "wrong" ones.

UPDATE: Orin Kerr has a thoughtful post here.