- The Washington Times - Friday, December 26, 2003

There have been lots of important court decisions in recent days, but not from the Supreme Court, and you shouldn’t expect any in the immediate future. It has already begun its holiday vacation and won’t be back until mid-January.

After that four-week recess, the court will be in session for two weeks, after which it will break for four weeks, return for three, and then take off the following two. From mid-December until the completion of its term in late June or early July, the court will be in recess for 14 weeks. That’s before the justices take three months off for the summer.

The lawyers I know put in long hours, so I’m reluctant to accuse those on the court of a feeble work ethic. Just because they’re in recess doesn’t mean they’re not working like overcaffeinated beavers. But if you wanted to accuse them of sloth, you wouldn’t have trouble finding evidence. However much time and energy they’re devoting to their tasks, the justices don’t produce much in the way of decisions.

That’s the complaint of Washington attorney Philip Allen Lacovara, who has 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.

Some people think the only thing better than a Supreme Court that decides few matters is a Supreme Court that decides none. More cases, in this view, would just allow the court to butt into more things that are none of its business.

But the vast growth of litigation in the lower courts suggests the justices are merely leaving more activism to their inferiors. And Mr. Lacovara says the court has come to disdain cases that involve economic regulation.

That’s not because there is nothing left to decide. In fact, it’s a realm where Congress often provides maddeningly vague instructions — creating great uncertainties that can be dispelled only by judges, and sometimes only by the Supreme Court.

Often, different appeals courts reach different conclusions — so the law effectively means one thing in one place and something else in another. When the Supreme Court refuses to take up such disputes, confusion persists, to the benefit of no one except lawyers billing by the hour.

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.”

After modern opinions like that, it’s jarring to read old ones where a justice would say, as Oliver Wendell Holmes Jr. did in one landmark dissent, “I regret sincerely that I am unable to agree with the judgment in this case.” Or where Hugo Black politely takes issue with “my brethren.” Brotherhood and sisterhood are missing today.

It’s no coincidence things have gotten worse as the court has done less and less of what it is hired to do. The remedy is obvious: work, work and more work. To get a better Supreme Court, we need a busier Supreme Court.

Steve Chapman is a nationally syndicated columnist.

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