Justices speak out amid concerns about busy summer schedule

In a speech Monday at New York University Law School, Democratic-appointed Justice Elena Kagan suggested that the Supreme Court would be better off spending less time considering a flood of unanticipated petitions that often result in short-term fixes that do not address the underlying issues raised by the litigants.

“This is a very difficult problem,” Kagan said Monday. “I don’t think we’re doing our best work that way.”

Kagan, who is one of three left-wing members of the court appointed by Republicans in the 6-3 majority, said the surge in summer activity began at the end of the Trump administration and continued into President Joe Biden’s four years in office.

“It’s a symmetrical problem: It doesn’t really matter who the president is,” Kagan said. “Government and non-government parties have started coming to court in increasing numbers.”

The Supreme Court has granted certiorari in recent years, meaning it agrees to hear oral arguments and issue a final written opinion in about 60 cases per semester. By contrast, emergency operations are typically more opaque. Parties involved in litigation, especially in cases involving contentious government policies, often engage in heated debates over which laws should be enforced when the case is heard in a lower court. Justices typically receive brief motions and rule on those motions with minimal explanation. But high court decisions can have quick and significant real-world effects.

What is the reason for the increase in the number of requests for urgent entry of a case into the register?

By the end of this summer break, which will end around the last week of September, the justices will have heard at least 25 urgent motions, according to a tally kept by Georgetown University Law Center professor Steve Vladeck. In 2021, 2022 and 2023, the number was between six and 15 per summer.

The Supreme Court is currently considering three different groups of emergency petitions for various Environmental Protection Agency rules, including more than two dozen Republican-led states challenging rules put in place earlier this year by the Biden administration.

In a recent post on his One First blog on Substack, Vladeck said the most “mature” dispute yet to be decided involves eight applications for new power plant emissions limits put in place by the Biden administration, noting that it “wouldn’t be surprising” if the Supreme Court ruled on the matter by this week.

The Supreme Court’s emergency docket has also over the past few months been filled with cases on separate policy disputes, from Title IX sex discrimination laws in schools to voter registration procedures in the key swing state of Arizona to Biden’s alternative but costly plan to help student loan borrowers.

Gorsuch discusses ‘shrinking’ caseload in regular court season

As the Supreme Court’s emergency caseload grows during its summer recess, another trend that has drawn comment from justices and court observers alike is the seemingly “shrinking” number of cases that justices hear between October and June of each annual oral argument session. For example, the Supreme Court heard between 80 and 90 cases per semester in 2009-10, a number that has steadily declined to about 60 per semester in recent years.

In a speech at a conference of the 10th U.S. Circuit Court of Appeals last week, Judge Neil Gorsuch, one of three judges appointed by former President Donald Trump, suggested that the decline in cases before the high court is due to a decline in the total number of appeals coming before the justices.

“Maybe it had something to do with the pandemic, and some of the lower courts were closed for a long time, and maybe there’s a backlog. Maybe it has something to do with the waivers of criminal appeals. I don’t know,” Gorsuch said. “Maybe it has something to do with the advancement of technology, which makes it a lot easier for all of us to tell if there’s a split in the districts.” Gorsuch continued: “It seems to me that if lawyers want our court to handle more cases, maybe they need to file more petitions.”

Some veterans’ rights advocates agree more cases are needed for the term

The declining number of cases heard by the justices during their regular sessions is a phenomenon that even veteran high court lawyers, such as former Bush administration attorney general Paul Clement, noted earlier this summer. Clement said he thinks it would be a good thing if the high court took on more cases each term.

“I will say that I think the court is handling too few cases. Now, as someone who files occasional motions for certification, I have a personal interest in having the court handle more cases, but I still think that objectively, it is better for the court to have a more complete docket,” said Clement, who was the lead attorney in a case this year in which the justices ruled by a 6-3 majority to overturn Chevron a doctrine that gave agencies broad authority to set policy agendas within individual administrations.

Speaking before a crowd in Washington at the annual Federalist Society 2024 Supreme Court Round Up event, Clement suggested that the low caseload compared with recent decades may perpetuate the misconception that justices only handle “controversial cases.”

“And if the court only deals with 60 cases, that means that when people look at the court, they might think, ‘Wow, all you do is race and abortion and Trump,’ and I think they wouldn’t be so wrong if the court only dealt with 60 cases. On the other hand, if the court deals with closer to 80 cases, I think it’s a little easier to point to the idea that the court actually deals with a wide range of cases and very often is unanimous in deciding them,” Clement said.

Gorsuch told the 10th Circuit that about 40% of the Supreme Court’s decisions this term have been unanimous or by an 8-1 vote.

“I think it’s a pretty good result for a court that has to decide some of the most difficult legal issues in the country,” he said.

Sotomayor expressed weariness amid calls for more work

Speaking about the growing difficulties before the Supreme Court, Democratic-appointed Justice Sonia Sotomayor said in January that the workload had become “heavier” and “more demanding” in recent years.

“The number of amici is larger, and you know our emergency calendar is much more active. I’m tired,” Sotomayor said. “We used to have a lot of vacations. Not anymore. The emergency calendar is busy almost every week.”

While the issues raised by Kagan, Gorsuch and Sotomayor reflect their personal views, their comments collectively demonstrate that the Supreme Court under Chief Justice John Roberts is grappling with the challenges of its workload and public perception.

After taking a sweeping step in the wake of Trump’s impeachment to create a “rule for the ages” on presidential immunity, the justices are preparing for another important term this year, which begins in October, when they will once again have to consider controversial issues including bans on firearms attachment, procedures for transgender minors, a death penalty case involving an alleged wrongful conviction and more.

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So far, however, only 28 cases have been taken to certiorari, meaning the justices have not even reached half the average during the Roberts court’s tenure.

As the Supreme Court’s annual long conference approaches in late September, the justices will be looking to add a ton of cases to their schedule this term. They’ll also be issuing a ton of dismissals, since the justices receive thousands of petitions each year.