Supreme Court Justice Brett Kavanaugh believes the court’s caseload is too light, about 60 arguments a year in recent years rather than the 75 he believes the justices should be handling. From the late 1950s through the early 1990s, the court often heard 150 or more cases annually. The number has steadily declined since. There is no clear explanation for the drop, but one factor may be the paucity of significant congressional enactments like the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990, which typically prompt litigation to clarify their boundaries, reports the Wall Street Journal. It takes four votes on the nine-member court to hear a case, but the court doesn’t announce the tally in public orders listing granted and denied appeals.
Kavanaugh has begun to say publicly when he wanted to take a case but was outvoted. “It’s no secret, given that I think I’d like to grant more cases than anyone else,” he said at a judicial conference in Austin, Tex. “These are not cases that are going to get a lot of public attention, but the kind of nuts-and-bolts cases where there is confusion in the courts, confusion about a prior decision of ours, confusion about a statute that Congress has passed. And I think we should jump in and try to clear up the confusion if we can, but it takes four of us to grant, and you go around the table and, lo and behold, there are three. And there it is.” Kavanaugh acknowledged that the court has been deciding more consequential matters on an emergency basis without oral argument, full briefing or consideration by lower courts—something called the shadow docket. While some critics have said the court shouldn’t be intervening in continuing litigation so aggressively, Kavanaugh said the Supreme Court was justified in sometimes leapfrogging the traditional sequence of appellate review. Emergency appeals seeking the Supreme Court’s immediate attention increased during the pandemic. Kavanaugh said the court acted on challenges to public-health measures because it saw the initial answer as really the final answer, because the emergency could be over before a case arrived on the court’s regular schedule.
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