Monday, December 29, 2003

Capitalism & Law: The Highest Court in the Land

The Supreme Court’s workload has been decreasing for years under Chief Justice William Rehnquist. Steve Chapman, writing in Saturday’s Washington Times, notes that lawyers have started to complain about the Court’s lack of production:
Philip Allen Lacovara, [h]as argued numerous cases before the court. Writing in the December issue of the American Lawyer, he notes that in 1976-77, a typical year for that era, the court issued decisions after hearing oral arguments in 176 cases. In its 2002-03 term, by contrast, the number was 73, which is about the norm these days.

It's not that the court is strapped for the resources it needs to handle its caseload. Each justice now has four law clerks to provide assistance, up from one or two a few decades ago. Petitions to the court that used to be read by actual justices now are often left to clerks. It takes about $86 million a year to produce those 73 decisions.
Chapman and Lacovara both argue the Court ignores too many important cases worthy of attention. Most notably, the Court “has come to disdain cases that involve economic regulation.” That’s completely true. One example that comes to my mind is the Three O Realty case, which the Court declined to review. In that case, New York State blatantly abused its eminent domain power by falsely claiming “blight” as an excuse to take private property and give it to another private owner—the New York Times, as it turns out. This case screamed for review, yet like almost all eminent domain abuse cases, the justices couldn’t be bothered.

Chapman also echoes my longheld belief that the Court suffers from opinion glut:
The court's shrunken caseload only proves idle hands are the devil's workshop. As the justices have fewer cases to resolve, they spend far more time on gratuitous hairsplitting. Many of them often act like pop divas in concert — less intent on harmonizing than on outdoing each other in showy solos.

One fairly simple Fifth Amendment case last term somehow split the court more ways than a shattered windshield, yielding six different opinions, with few of the justices able to agree on much of anything. The recent decision on the Bipartisan Campaign Reform Act of 2002 was a law student's worst nightmare, running nearly 300 pages and requiring 26 lines of small type just to score the votes. If these nine go out to dinner together, you can bet they insist on separate checks.

Deciding fewer cases doesn't seem to produce happier justices. Nasty sniping is far more common than in previous decades. Justice Antonin Scalia is particularly prone to spice his disagreements with insults. Last term, he said a verdict striking down sodomy laws "is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."
It’s almost like the Court has become a overpriced, underperforming NBA team—lots of star players who can’t come together as a team and win. The fact that the Court is now largely controlled by its star pragmatist, Sandra Day O’Connor, only makes things worse.

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