Controversies involving the United States Supreme Court generally center on the content of Court’s decisions, but in recent years, much attention has focused on the Court’s processes – in particular, two very different aspects of the Court’s modes of doing business. At one end of the spectrum, the number of cases receiving plenary consideration – full briefing, oral argument, and (almost invariably) a signed opinion – has shrunk to levels lower than any since the Civil War. At the other end, the Court has effectively resolved many high-profile disputes through unexplained orders granting or denying emergency relief in cases in which a certiorari petition has not yet been filed.
This article, published in 1983 and grounded in empirical study of the Court’s work, provides valuable background for understanding these current developments. It takes as its starting point the unique challenges faced by the Supreme Court in finding a proper balance between the two basic functions of appellate courts: review for error and lawmaking. On one side, the jurisdictional arrangements now in force reflect a broad consensus that the Court should decide, in the words of the Justices, only cases “of … general public importance or concern.” On the other side, one may doubt whether it is realistic to expect the Court to entirely abjure review for error – and perhaps even question whether doing so would be consistent with the basic jurisprudential premises associated with Marbury v. Madison.
The article makes several significant contributions to explaining how the Court has drawn the balance. First, it explores empirically and in detail the evolution of the different modes by which the Court has considered cases on the merits without adding them to its plenary docket. Under Chief Justice Warren (1953-1969), it was not uncommon for the Court to summarily reverse a lower court judgment with no more than a citation or two (and sometimes not even that) by way of explanation. The Court’s predilection for the summary reversal without opinion came under heavy attack by scholars, and in the early 1970s the practice was abandoned almost entirely. Two modes of disposition not commonly used until then replaced it. Both remain part of the Court’s arsenal today.
The first is the now-familiar “GVR” raises the same or a related question. When the lower court’s decision appears to be possibly inconsistent with the new Supreme Court precedent, the Court will generally not reverse outright; instead, it will grant certiorari, vacate the judgment below, and remand for reconsideration in light of the new ruling. The number of these orders varies greatly from Term to Term; in the 2021 Term, there were about 80.
The second mode of summary disposition is the per curiam opinion without oral argument. Under Chief Justice Burger (1969-1986), the Court sometimes issued 25 or more such dispositions a Term, but in recent years the number has seldom gone as high as 10. As of February 1, 2023, not a single such disposition had been issued in the 2022 Term.
In explaining these shifts, the article calls attention to the important distinction, first implemented by the Reporter of Decisions more than 50 years ago, between the “front of the book” and the “back of the book” – the “book” being the official United States Reports. In the “front of the book” are all argued cases, along with the summary dispositions (including emergency rulings) that “[lend themselves] to a headnote.” All other dispositions are printed in the “back of the book.” Today, when even the preliminary prints of the Reports are several years in arrears, the distinction is reflected in the serial numbering of “opinions” for each Term on the Court’s website.
Finally, the article looks more broadly at the Court’s handling of its caseload, including the screening of cases for plenary consideration. What stands out as one examines the totality of the Court's work is the pervasive way in which considerations associated with review for error influence the Court's modes of doing business. A companion article examines in detail the composition of the plenary docket during the middle years of the Burger Court and the considerations that have influenced the Court's exercise of jurisdiction in the four major areas of federal law. See Arthur D. Hellman, The Supreme Court, the National Law, and the Selection of Cases for the Plenary Docket, 44 U. PITT. L. REV. 521 (1983).
Arthur D. Hellman,
Error Correction, Lawmaking, and the Supreme Court’s Exercise of Discretionary Review,
University of Pittsburgh Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/552
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