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Young John Roberts was a funny guy.

“The generally accepted notion that the court can only hear roughly 150 cases each term,” the future chief justice wrote while he was an early-career lawyer working in the Reagan White House, “gives the same sense of reassurance as the adjournment of the court in July, when we know that the Constitution is safe for the summer.”

Roberts, of course, wrote this at a time when Republicans could not rely on the federal judiciary to advance its policy goals — something that Roberts has done much to change in his current job.

The justices are in the middle of an unusually political term, fraught with cases that tweak many of America’s most bitter divides on issues like guns or abortion, and that seek to fundamentally restructure who wields power in the United States.

Yet, while the justices seem eager to be the final word on America’s most intractable political divides, they’ve increasingly stopped doing the traditional work of judges — resolving often technical, boring legal disputes that arise between litigants whose names will never be mentioned on cable news.

The Supreme Court used to do this work. But it avoids it more and more now. Indeed, one striking thing about Roberts’s Reagan-era quip about the Court’s docket is that he describes a Court that “can only hear roughly 150 cases each term.” Now, the Court is hearing not even half that.

In the Court’s 2013 term, it decided 79 cases on its merits docket. This term, assuming that none of the Court’s pending cases are dismissed, it will only hand down 61 decisions.

Because the size of the Court’s docket has been in steady decline for many decades, there’s been a great deal of scholarship examining why this decline is happening. The striking thing, however, is that the size of the Court’s docket continues to shrink, even after many of the most likely explanations fade into the past. (For more on these potential explanations, check out my full piece up today.)

One thing is clear, however. The overall decline in the Court’s docket does not appear to be matched by a decline in the number of political cases heard by the justices.

Adam Feldman/Empirical SCOTUS

Even if the current term, which has been mired in the giant sucking vortex that is Donald Trump, is an outlier, the last several terms have featured an array of highly partisan cases that have fundamentally reworked some of the most contentious areas of US law. 

Roe v. Wade is gone. So is affirmative action at nearly all universities. Thanks to the Supreme Court’s decision New York State Rifle & Pistol Association v. Bruen (2022), gun regulations of all kinds are now in jeopardy.

And just one month after Justice Amy Coney Barrett’s confirmation gave Republican appointees a supermajority on the Court, the Court handed down one of its most significant religion cases in three decades — giving religious conservatives a broad new right to ignore state laws they object to on religious grounds.

And this decision was only the first in a wave of cases revolutionizing the Court’s approach to religion. As I wrote in a 2022 article, the Supreme Court heard only seven religious liberty cases during the Obama presidency. By contrast, it decided just as many religious liberty cases before Barrett celebrated the second anniversary of her confirmation to the Court.

One possible explanation for why political disputes dominate so much of the Court’s docket, even as the volume of ordinary legal cases diminish more and more with each passing year, is that the process for selecting justices has become far more political — and far more partisan — than it used to be.

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When you consider just how much power is wielded by the Supreme Court, it’s astonishing how little thought many US presidents put into their judicial appointments.

President Woodrow Wilson, for example, appointed Justice James Clark McReynolds — a lazy, tyrannical jurist that Time magazine once described as a “savagely sarcastic, incredibly reactionary Puritan anti-Semite” — in large part because the president found the future justice, who previously served as attorney general, to be so obnoxious that Wilson promoted McReynolds to get him out of the Cabinet.

Similarly, President Dwight Eisenhower complained in 1958 that appointing Justice William Brennan, a titan of American liberalism who was extraordinarily effective in moving the law to the left, was one of the two biggest mistakes he made as president (the other was appointing Chief Justice Earl Warren, another highly consequential liberal appointee). But the Eisenhower White House did very little to vet Brennan ideologically, and Eisenhower selected him in large part because Brennan was Catholic and Ike wanted to appeal to Catholic voters.

To this day, many Republican judicial operatives still use the battle cry “No More Souters” to describe their approach to Supreme Court nominees, a reference to Justice David Souter, a George H. W. Bush appointee who turned out to be a moderate liberal after he was appointed to the Court.

Since Souter’s appointment, both political parties have grown far more sophisticated at vetting potential nominees to ensure that they won’t stray from their party’s ideological views after their elevation to the bench.

On the Republican side, organizations like the Federalist Society begin to vet potential nominees almost as soon as they enter law school. And it's notable that every Republican justice except for Barrett served as a political appointee in a GOP administration, where high-level Republicans could observe their work and probe their ideological views.

The Democratic vetting operation, meanwhile, is more informal but no less successful. None of President Clinton’s, Obama’s, or Biden’s Supreme Court appointments have broken with the Democratic Party’s general approach to judging in the same way that Souter broke with Republicans.

So it shouldn’t surprise anyone that justices chosen largely because of their political ideology, rather than because of their records as neutral and impartial jurists, appear to be more interested in deciding political questions than they are in resolving legal disputes.

Read the full piece here.

—Ian Millhiser, senior correspondent 

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