- The Washington Times - Wednesday, September 14, 2005

Judge John G. Roberts Jr. yesterday revealed one way his management of the Supreme Court could differ starkly from his predecessor and mentor William H. Rehnquist: The number of cases the court takes on is likely to increase.

Under Chief Justice Rehnquist, who began his tenure in 1986, the average high court caseload dropped from about 150 to 80 cases a year — a trend Judge Roberts appeared intent on reversing during exchanges yesterday.

“I do think there’s room for the court to take more cases,” Judge Roberts told Sen. Herb Kohl, Wisconsin Democrat, although he couched the remark by first saying, “It may be a view I’ll have to be educated on further if I am confirmed and I’m not stating it as a solid view.”

In an earlier exchange with Sen. Patrick J. Leahy, Vermont Democrat, Judge Roberts noted that the justices “handled twice as many cases 20 years ago than they do today, and I think the capability to address more issues is there on the court.”

While legal scholars agree more cases would significantly alter how the high court does business, there are varied theories of why the caseload decreased so dramatically during the Rehnquist years.

Through much of its history, the Supreme Court was required by Congress to hear certain cases appealed from lower courts. Congress abolished this “mandatory jurisdiction” law in 1988, effectively doing away with about 20 cases a year.

The caseload has since been set by the justices, who pick — or “grant certiorari” to — the cases they wish to hear from about 6,000 petitions filed with the Supreme Court annually by individuals seeking review of their cases at the highest level.

During the shift toward conservatism under Chief Justice Rehnquist, liberal lawyers grew more reluctant to petition the Supreme Court “because of the potential for an adverse ruling,” says Richard C. Reuben of the University of Missouri School of Law.

“While they may have lost at the court of appeals, they figured that was just one circuit,” Mr. Reuben said.

Stephen Wermiel of American University’s Washington College of Law agreed, but added the phenomena was only “one of several factors” behind the shrunken caseload.

With Supreme Court and lower federal court appointments filled by the Reagan and first Bush administrations, a conservative Supreme Court “would feel that there were fewer cases that they needed to review because the federal appeals courts were more in line with the Supreme Court’s thinking,” Mr. Wermiel said.

Another reason was simply that Chief Justice Rehnquist “was a very efficient administrator,” said Mr. Reuben. “The quality of the workmanship in Supreme Court opinions, I think improved as a general manner. The opinions were less rushed, they were crafted better.”

Judge Roberts’ remarks on the issue yesterday were unexpected because they strayed from a memo he wrote as a White House lawyer in 1983 to then Chief Justice Warren E. Burger, strongly urging the high court to reduce its caseload — specifically by hearing fewer death penalty cases.

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