The Curious Decline in Paid Petitions for Certiorari

A number of recent newspaper articles have examined the decline in the Supreme Court’s plenary docket. These articles were prompted by the fact that a number of argument slots in the February and March calendars went unfilled, and the Court compensated by overloading its April docket. Speculation abounds about the reasons for the Court’s shrunken docket, ranging from greater homogeneity in the United States Court of Appeals to the elimination of the Court mandatory appellate jurisdiction in 1988. Many of the reasons appearing in recent newspaper articles, however, lack any empirical support at all and others are just plain wrong. One that strikes me as particularly incorrect is the desire of the Justices to remain out of the public eye.

I am currently working on an empirical article that looks into this issue in great depth, using figures ranging from the historical caseload statistics from the Solicitor General’s office to the number of grant and join-3 votes per Justice through the 1986-1993 period. By virtually every measure conceivable, the Court’s workload has declined, and has done so significantly. Some Justices have said that there has been no conscious decision by members of the Court to hear fewer cases. There may be more truth to this assertion than some believe.

Paid petitions for certiorari have been, by far, the greatest source of cases for the Court’s plenary docket. Very few in forma pauperis petitions are granted each year, even though they make up the largest portion of the Court’s certiorari docket. Throughout the 1980s and early 1990s, the number of paid petitions filed with the Court ranged from 1,986 petitions in 1990 to 2,417 petitions in 1981. However, beginning in 1994, or at about the time of greatest decline in the Court’s plenary docket, the number of paid petitions began to plummet, with only 1,693 paid petitions filed during October Term 2004, a nearly 22% decrease since 1994. Based on the testimony of Justice Kennedy before the Judiciary Committee a couple of weeks ago, the Justices would probably argue that there have been fewer major federal statutes enacted in recent years that lead to widespread litigation, such as the Clean Water Act and the Bankruptcy Reform Act. I am not sure, however, that the lack of “new enactments” explains a phenomenon that began nearly 13 years ago. Because this post is already a bit on the lengthy side, I will wait to give you a few of my thoughts on this issue until later this week, but suffice it to say, I do not agree with Justice Kennedy.