Workload

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Workload Since the end of World War II, the number of cases filed with the Supreme Court has grown significantly, mushrooming from 1,295 in 1947 to nearly 9,500 in 2002. Filings are the cases presented to the Court for its consideration each term. Since, however, the Court's discretionary power permits it to deny substantive review to more than 90 percent of the cases filed, the number of filings alone cannot constitute a precise indicator of the Court's workload. Other factors must also be considered, including the time allotted to each case decided on the merits; the number, length, and complexity of opinions; and the amount of work delegated to law clerks.

Nevertheless, the upward trend in case filings has generated wide concern. As former Chief Justice Warren Burger and others have observed, the increase in filings has magnified the sheer volume of cases that require some action. More petitions require more time, although there is little empirical evidence that more filings require substantially more screening time. While the justices have not taken commensurately greater numbers of cases to review on the merits, there is at least mixed evidence that the time required for the Court to render a decision on the merits has increased. But this may be due more to the increasing complexity of cases decided than to the initial number of cases filed.

Much of the concern about the Court's workload focuses not on time or level of effort but on the quality of attention devoted to individual cases. Particular concern has been expressed about the justices' seeming inability to agree on major opinions and about the clarity of their reasoning and decisions. In a 1983 article, Philip Kurland and Dennis Hutchinson charge that an overloaded docket leads to “sleazy” opinions on the merits. Whether the Court's product has in fact deteriorated cannot be assessed fully or even objectively. There is no agreed‐on basis for judgment or comparison, and, even if such standards could be developed, the causes of alleged deterioration would be difficult to identify. How much could be attributed to workload and how much to clashing ideological and attitudinal preferences of the justices?

There are also those, including a number of the justices, who simply deny that there is a workload problem of any consequence—certainly not one that requires corrective action beyond a little more concentrated effort and/or greater reliance on law clerks. No justice claims that he or she personally reads all certiorari petitions. There is also widespread agreement among the justices that in forma pauperis cases, which comprise nearly half the initial filings, are largely frivolous and can be disposed of quickly. In fact, fewer than 1 percent of these cases are granted review. Nevertheless, these petitions do require some attention and thus must be factored into any calculation of just what the Court's workload is and whether or not it constitutes a problem.

If the nature of the Court's workload is clouded by disagreement about causes, consequences, and significance, there is no paucity of proposed solutions to the alleged problem. Some of these involve statutory changes in jurisdiction, such as the Judicial Improvements and Access to Justice Act of 1988, which eliminated the mandatory appeal route of access to the Court in all but a few cases. Others have called for limiting or expediting the consideration of certain categories of cases that are particularly time consuming, such as habeas corpus in capital punishment cases. But these are also cases with high political content; proposals to limit them are at least as responsive to ideological as to workload considerations.

Still other critics have called for the creation of new courts, or the modification of the jurisdiction of existing courts, to siphon off certiorari petitions, or other cases referred by the Court itself, from its docket. But such “solutions” might add to the problem rather than solving it. They would create another tier of federal appellate courts, thus inevitably increasing problems of delay and policy confusion. And, more important to many, they would necessarily detract from, and thus reduce, the Court's policy impact. Of course, weakening the Court is (or was) high on the agenda of its conservative critics. Now that the Court has taken a distinctly rightward turn, these suggested “reforms” have become much less prominent.

The Court has itself attempted to address the workload issue. The justices rely on their law clerks to screen certiorari petitions. Seven of the nine justices now participate in a clerk cert pool established by former Justice Lewis Powell. One clerk from each justice's chambers is assigned to review petitions and distribute a “pool memo” to each participating justice's chambers—where they may be taken at face value or reviewed again by another clerk. In theory this reduces the number of clerks and the amount of individual judicial attention devoted to certiorari petitions. How much time it actually saves is, at best, debatable.

Beyond screening certiorari petitions, there has been an increased delegation to clerks of additional duties in the writing of opinions. The number of clerks assigned to each justice (though not always utilized) has increased to four. Whether increasing the clerks' workload and responsibilities also eases the workload on individual justices is unclear. Relying more heavily on clerks to draft opinions has also resulted in opinions of much greater length, with vastly more footnotes, and probably in a reduced receptivity to a genuinely collegial product.

The Court can also dispose of some cases by summary procedures that do not require the same level of intense and individualized attention as full opinion cases. It has, in the past decade, increased the number of petitions in which, without additional briefs or oral argument, it has vacated the judgment of a lower court and remanded for decision “not inconsistent with” a recently decided case. The Court has also decided more cases with only a per curiam opinion. While these opinions may contain some legal reasoning, they are usually too brief to provide lower courts or future litigants with much guidance. In either instance the charge could be made that the litigants—and the law—are receiving treatment that is below par.

Finally, the Court can adjust to its workload by lengthening the deliberative process, for example, in extending the time frame between certiorari and oral argument and again between argument and the announcement of its decision. But this simply increases the wait or queue for decision and leads to a growing backlog—something that, except for a few recent terms, the modern Court has been able to avoid. Some cases are inevitably carried over until the next term: those filed late in the term, those selected for decision late in a term, and a few that have been argued but cannot be resolved in time to announce by the term's end (or which are set over for reargument). This allows the Court to maintain its traditional deliberative practices.

When the Court's normal rhythm is disturbed, however, litigants have to wait longer to learn if the Court will decide their case and longer again for the case to be decided. While a few months extra delay, if uniform and expected, would not be severely consequential for the litigants or the society, it would certainly diminish the Court's image as perhaps the only governmental body in Washington that keeps more or less abreast of its work.

Assuming that the Supreme Court will not (and should not) alter its traditional deliberative practices for those cases that it does decide “on the merits,” it has probably instituted most of the marginal, internal changes that might expedite processing of cases. There is little support, and probably no authority, for more radical changes designed to ease its workload (such as a division of the Court into panels) or for delegating some opinion‐writing functions to a central staff. Unless and until American society redirects its increasing reliance on judicial decisions, the Court's workload is likely to continue to grow. Only when the justices themselves cry for help is some major restructuring likely to occur.

Bibliography

Gerhard Casper and and Richard Posner , The Workload of the Supreme Court (1976).
Philip Kurland and and Dennis Hutchinson , The Business of the Supreme Court, O.T. 1982, University of Chicago Law Review 50 (1983): 628–651.
Of High Designs: A Compendium of Proposals to Reduce the Workload of the Supreme Court, note in Harvard Law Review 97 (1983): 307–325.

William P. McLauchlan

work·load / ˈwərkˌlōd/ • n. the amount of work to be done by someone or something: he had been given three deputies to ease his workload.

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