Wednesday, November 4, 2009
Frederick Schauer has posted "Is it Important to Be Important? Evaluating the Supreme Court's Case Selection Process," to be published in the Yale Law Journal.
The Supreme Court has been criticized for taking and deciding too few cases, with its current full opinion output down to 70 cases a year from 150 or more as recently as the middle of the 1980s. Much of the criticism has centered around the Court’s reluctance to decide important cases, but sorting out the criticism depends on an understanding of what we mean by “important.” It is true that the Court decides very few of the important issues of our time, and the distance between the Court’s docket and current concerns about health care, jobs, the economy in general, bank bailouts, auto company bailouts, executive compensation, wars in Iraq and Afghanistan, and the nuclear capability of Iran and North Korea underscore this gap. Current public opinion polling updating Schauer, “Foreword: The Court’s Agenda - and the Nation’s,” 120 Harv. L. Rev. 4 (2006), confirms that there is no change in the gap between the two agendas, and little suggests that there is anything wrong with this. But if we turn from the question of social and political importance to legal importance, it appears that the Court is failing to resolve many of the issues that appear with great frequency in the lower courts, and as to which the law is highly uncertain. The Court’s increasing failure to adequately perform the function of guiding the lower courts is indeed a problem, a problem caused in part by the lack of a way for the Court systematically to obtain accurate information about the array of often-litigated issues in need of resolution. The Essay concludes with possible suggestions on how the informational deficit and informational distortion might be corrected.