The Business of the Supreme Court under the Judiciary Act of 1925: The Plenary Docket in the 1970's

Abstract

During the last decade, the Supreme Court has been deciding 65 to 70 cases a Term after oral argument. That represents a sharp decline from the 1970s and 1980s, the era of the Burger Court, when the Court was deciding about 150 cases a Term. The Burger Court’s docket, in turn, reflected a shift from the 1960s, when the docket was smaller. In short, what is “normal” for the plenary docket varies from one era to another. The period of the Burger Court retains a special interest in that regard because that was the only period after World War II in which the plenary docket reached the 150-case level. This article provides a detailed examination of the plenary docket during first six Terms of the full Burger Court, with comparisons to the two preceding six-Term periods. It thus includes ten Terms under the leadership of Chief Justice Warren. The analysis is structured by reference to the four major functions that the Court performs in the life and law of America: delineating the limits of governmental authority against claims of individual liberty (civil rights); defining the boundaries between state and national power and among the branches of the national government (federalism and separation of powers); interpreting and applying the body of statutes and regulations through which the national government exercises its sovereign powers and regulates activity in the private sector (general federal law); and supervising the operation of the federal courts (jurisdiction and procedure). The study found that the expansion of the plenary docket could be attributed largely to growth in civil rights cases. During the first twelve Terms of the study, the annual total of civil rights cases was gradually increasing, while the size of the plenary docket remained essentially the same. The result was that, as the Court moved through the 1960s, civil rights cases were steadily displacing litigation involving other issues of federal law. By the 1970 Term, all cases primarily involving issues other than civil rights occupied little more than one-third of the plenary docket; their number had been reduced by about forty percent from what it had been a decade earlier. Then, in 1971, the Court suddenly expanded the size of the plenary docket. The consequences were twofold. First, there would be no further displacement of cases that did not involve civil rights issues. Second, as long as the Justices were willing to accept the heavier workload, they could continue to hear a large number of cases that did involve civil rights. It thus appears that the Court expanded the size of the plenary docket in 1971 because the Justices were unwilling to cut back on the number of civil rights cases they were deciding, but recognized that there was a need for a greater number of authoritative precedents in other areas of federal law. The only way they could satisfy both desires was to increase the total number of cases given plenary consideration.