Thanks to Tom for that informative post below on the Incredible Shrinking Docket. I’ll bite on the “normative” question: Is there anything the Court ought to be doing differently? Obviously, its docket has been shrinkng in the post-Justice-White era, and even though the new Chief Justice hinted at his confirmation hearing that he might be more receptive to a more generous cert.-grant practice (am I remembering that correctly?), the trend is headed decidedly in the opposite direction.

Tom, and others with an extensive cert. practice, might understandably be reluctant to address the question publicly, but to the extent Court-watchers and practitioners are able and willing, I’d be curious to hear whether there are any particular categories of cases — defined by subject-matter, reasons-for-grant, or otherwise — to which the Court is being insufficiently attentive. Are there a bunch of obvious cert.-worthy cases out there that the Court is inexplicably denying? If so, do they fit any pattern? Does anyone think the Court is getting the balance just about right?

One often hears complaints, for instance, that the Court doesn’t resolve enough circuit splits on statutory questions in commercial cases. But I’ve also heard from other close followers that those complaints are unfounded — that a great deal of money in a handful of cases might turn on certain minor doctrinal ambiguities, but that the questions presented don’t have especially broad importance and/or that the “circuit splits” are incredibly arcane or narrow (to the extent it’s fair to make such topic-based generalizations at all).

What do you all think?

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