This week, I am posting a special edition of the academic round-up to discuss papers that were presented two weeks ago at the conference co-sponsored by the Yale Law Journal and the Yale Supreme Court Clinic entitled " Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process," see here. The conference included many of the most prominent academics who study the Supreme Court and the practitioners who most frequently appear before the Court. Some of the papers and ideas presented at the conference have been previously discussed by Tony Mauro in a post on the Blog of the Legal Times, see here, and by Adam Liptak in his Sidebar column last week, see here.
Although this post is intended to discuss the papers that were presented at the conference, I would recommend listening to the remarks of the presenters too. Although the entire conference was quite informative and all of the presenters did a nice job, several deserve a special mention. Vicki Jackson of Georgetown University Law Center did a very nice job of summarizing the main arguments for and against an expanded Supreme Court plenary docket in her remarks at the end of panel three (listen here). Roy Englert did a nice job of discussing the cert pool as a possible explanation for the declining docket during the first panel (listen here). Finally, Carter Phillips and Judge J. Harvie Wilkinson presented contrary views on the normative question of whether the Supreme Court's docket should be expanded (listen here and here). A discussion of the papers after the jump:
Richard Lazarus (Georgetown University Law Center), who always does excellent work on the Supreme Court, continued his discussion from his 2008 Georgetown Law Journal article, see here, about whether the plenary docket is dominated by a small cadre of elite Supreme Court advocates, see here. This trend, which Richard persuasively demonstrates in his work, has real implications for both the size and the composition of the plenary docket.
SCOTUSblog's own Lyle Denniston submitted a provocative paper regarding whether the Supreme Court's traditional "Rule of Four" in granting certiorari has been effectively transformed into a Rule of Five through a practice by members of the Court to defensively deny otherwise certworthy petitions for certiorari, see here. As evidence of this phenomenon, Lyle discusses Boumediene v. Bush, in which the Court initially denied certiorari but then later reversed course when five Justices agreed to hear the case on the merits (Stevens, Kennedy, Souter, Ginsburg, and Breyer). Lyle's paper is worth reading and deserves further empirical analysis (which I hope to conduct in consultation with Lyle in the coming year or two).
Finally, my own paper, "The Supreme Court's Declining Plenary Docket: A Membership-Based Explanation," analyzes the certiorari votes from more than 2,500 cases from 1986 through 1993 to determine whether membership changes can explain the dramatic decrease in the Supreme Court's plenary docket during that period, see here. Of most significance, the data demonstrate that Justice Ginsburg voted to grant cert about 29.2% as often as Byron White, the Justice whom she replaced. In addition, all five members that joined the Court during the period voted to grant certiorari less often than their predecessors, which likely accounts for much of the change during the period.