Linda Greenhouse’s NYT article is fascinating, noting that:
The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it.
The drop in the Court’s docket is fascinating, and Greenhouse’s article sets out some interesting potential contributing factors (noting a decline in filings by the Solicitor General, for instance).
Of possibly even greater interest to the
professional navel gazers blogging world is Greenhouse’s familiar citation to of the legal blogosphere in her article. She mentions a SCOTUSBlog post by Tom Goldstein (which seems to have provided some of the initial idea for her own article); she also casually mentions a blog post by Orin Kerr.
Blog readers everywhere have to be wondering if Greenhouse’s article doesn’t provide its own answer. Supreme Court case load down . . . cites to bloggers up . . . could the two be somehow connected?
There is no correlation; grasshopper, there is only causation. And this one is easy: Supreme Court case numbers are down because of legal blogs.
Orin and Dan and Eugene and Stephen Bainbridge and Gordon Smith (and so on, and so forth) are successfully solving problems before the Justices get to them, and blogging the answers in real time. And given the blogosphere’s growth, it’s just going to get worse. The Court’s docket will continue to shrink until the frustrated Justices eventually cave in and begin blogging themselves (instead of just lurking). So just you watch — by next term, all new clerks will be required to know Movable Type.
Remember, you heard it here first.