Solving the SCOTUS docket mystery

In this morning’s New York Times, Linda Greenhouse has this terrific article entitled “Case of the Dwindling Docket Mystifies the Supreme Court.”  Linda provides reasons for the problems SCOTUS has had filling its docket, but one is most fundamental: “The federal government has been losing fewer cases in the lower courts and so has less reason to appeal.” 

Of course,this is especially true in the federal sentencing universe after Booker, where the government is far more likely to seek (and win) through en banc review rather than through cert when it (rarely) loses before a circuit panel.  (I have often said since Blakely that the US Supreme Court is now probably the most liberal appellate court in the nation on sentencing issues; the Justice Department is obviously not eager to have the Court that brought us Blakely and Booker considering many sentencing issues.)

I dispute the notion that there is a “paucity of cases that meet the court’s standard criteria” for review.  (Linda attributes this view to the Justices and Orin Kerr seems to agree.)  There are numerous circuit splits on Booker issues that impact thousands of cases every month.  Right after Booker, we had a crazy three-way circuit split over Booker plain error the Court refused to consider.  And, as I have detailed here, even after the Court considers reasonableness review in Claiborne and Rita, there are at least three other major circuit splits on how advisory guidelines are supposed to work.

In addition to four important post-Booker issues that surely “meet the court’s standard criteria,” there are many other sentencing issues that have split the lower courts before and after Blakely.  These issues range from the scope of the “prior conviction” exception to the burden of proof for large sentence increases to the application of Blakely to non-prison sentences to the constitutionality of residency restrictions and so on and so on….

Significantly, while the SCOTUS docket has shrunk dramatically over the last 20 years, the size of federal and state criminal justice systems have increased dramatically.  There are literally millions more criminal justice cases in the system now than there was two decades ago.  In my view, the problem is not the lack of worthwhile cases, the problem is a Supreme Court which has altered its view on what sorts of cases seem worth its time and energy.