More on the Curious Decline in Paid Petitions

Earlier this week, I discussed the curious decline in the number of paid petitions filed with the Court, a phenomenon that began in 1994 and has since accelerated. One prevailing theory is that Congress has been passing fewer major pieces of legislation recently that lead to widespread litigation in federal court. While that may explain some of the phenomenon, I think that the decline in paid petitions is in large part a function of the Court’s own making. Let me explain.

The decline in the plenary docket, though it started in 1986, really began to accelerate in the early 1990s as a number of new Justices were appointed. From 1992 to 1993, for example, the Court decided 27 fewer cases, the largest drop for a single Term since the Harvard Law Review began collecting statistics on the Supreme Court’s docket in 1948. As you may know, the plenary docket declined even further over the next several years, reaching a modern low during October Term 2002. As the number of cases granted plenary review have decreased and the number of petitions for certiorari have simultaneously increased, the Court has become more selective in its selection of cases for plenary review.

Assuming that litigants (and their counsel) are sophisticated, it is not a surprise that the number of paid petitions has decreased as a result. In one article, Tony Mauro estimated that it costs between $10,000 and $75,000 to file a petition for certiorari with the Court, with most of that sum attributable to attorney’s fees. That is no nominal sum. With the Court granting fewer than 1% of the petitions filed, it is logical that many litigants are simply unwilling to expend such a large sum on the slim chance of gaining plenary review. A rational (though not all litigants are rational!) litigant will only authorize the filing of a cert petition if the expected benefit from the filing outweighs its expected costs. The expected cost is straightforward: it is between $10,000 to $75,000 in addition to any emotional costs for individual litigants. The expected benefit is a function of the probability of receiving plenary review, the probability of receiving a favorable result if certiorari is granted, and the value to the litigant of a favorable outcome. As costs have risen, the expected benefit from filing a petition has also decreased, largely as a result of a decline in the probability of receiving plenary review. As a simple matter of economic theory, therefore, it is expected and we have in fact witnessed a decline in the number of paid petitions. Although I think that other reasons may also explain the “curious” decline in paid petitions, simple economics may be the largest factor of all.

With that in mind, I would very much like to hear from other practitioners and academics who may disagree (or agree) with my view.