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Breyer on the Court’s shrinking docket, foreign law, and more

“We are trying to take more cases,” Justice Stephen Breyer announced last night, and he gave reason to believe that the Justices will soon do just that, thereby reversing the recent trend of a shrinking docket.

Although – as Stephen Wermiel has reported for this blog – “theories abound to explain the decline” in the number of cases in which the Court has granted review, for Breyer the answer is quite simple:  “there are fewer circuit splits.”  Arguing that a reduction in legislation results in less litigation, Breyer located the reason squarely within the institutional role of the Court itself, which is “not correcting errors but looking at problems where different judges have come to different conclusions as to the meaning of the same statutes.”

This same logic suggests the trend will soon be changing. Breyer reported that the Justices “are discovering more splits among the circuits,” which he attributed to the passage of the Sarbanes-Oxley Act and other statutes from the past decade. A flurry of legislation in the 1960s led to an increase in the Court’s docket, Breyer suggested; after a similar lag in time for litigation to develop and move its way through the courts should lead to a new uptick in the size of the current Court’s docket.

These comments came in response to a question from the audience at the end of an evening at Sixth and I, where Breyer discussed his recently published book, The Court and the World: American Law and the New Global Realities, with NPR’s Nina Totenberg.  Breyer argues in the book that judicial engagement with the laws and practices of foreign countries is both necessary and good for American democracy in today’s inter-connected world.

Referencing an op-ed in the National Review, Totenberg asked Breyer to respond to criticism that, as she summarized it, takes issue with the idea that “foreign law can dictate the results for us.”

Breyer called this concern about a dilution of American values from foreign influences, “a fine motivation,” but he ultimately dismissed it as one that only makes sense in an “abstract sense.” His own reference to foreign law, he claimed, is “not the product of a different judicial philosophy,” but is “forced on us by the nature of the world.”

“The best way to do this [to promote American values] is to engage the rest of the world, which will go on without us whether we choose to participate or not,” Breyer emphasized last night.  With a bit of a chilling tone, Breyer concluded that if we do choose not to participate in today’s inter-connected world, “it will affect us.”

Recommended Citation: Andrew Hamm, Breyer on the Court’s shrinking docket, foreign law, and more, SCOTUSblog (Sep. 17, 2015, 11:58 AM),