Does Docket Size Matter? Revisiting Empirical Accounts of the Supreme Court's Incredibly Shrinking Docket

Michael Heise, Martin T. Wells & Dawn M. Chutkow*

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized the salience of ideological distance across Justices as well as ideological distance separating the Supreme Court from the lower federal appellate courts, results from our study, by contrast, suggest that when it comes to ideological differences, intra-Court rather than intercourt ideological distance emerged, on balance, as critical. Other variables also emerged as persistently important, notably Congress’s decision in 1988 to remove much of the Court’s mandatory appellate jurisdiction and variation in the total number of certiorari petitions filed. Finally, these core findings appear robust across alternative model specifications. While most commentators react to a diminishing Court docket by emphasizing possible adverse consequences, rather than commit to any normative position, our Article instead considers both the possible institutional costs and benefits incident to a declining Court docket, with an emphasis on structural horizontal separation of powers implications.

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© 2020 Michael Heise, Martin T. Wells, and Dawn M. Chutkow. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Author correspondence to Michael Heise, email: michael.heise@cornell.edu. Heise is William G. McRoberts Professor in the Empirical Study of Law, Cornell Law School; Wells is Charles A. Alexander Professor of Statistical Sciences, Department of Statistics and Data Science, Cornell University; Chutkow is Visiting Professor, Cornell Law School. We thank Ryan J. Owens, David A. Simon, Lawrence Rothenberg, and Ken Moffett for their helpful comments on prior drafts of our Article. Tom Hansford, Allison Merrill, panelists at the 2019 Midwest Political Science Association annual meeting, and participants in the 2019 Notre Dame Law Review Empirical Legal Studies Symposium honoring Professor Margaret Brinig also provided helpful feedback. Peter Hook provided outstanding technical research assistance with locating various archival data. Finally, the Roger C. Hyatt Faculty Research Fund provided helpful support for this research project.