Friday, August 7, 2009

New York Times Reports That Sotomayor Faces "Heavy Workload of Complex Cases"

Adam Liptak's article in the New York Times describes the Supreme Court as presenting a heavier and much more complicated workload for newly confirmed Supreme Justice Sonia Sotomayor. Well, he is only partially correct.

The case load of judges in the courts of appeals is actually much larger than that of Supreme Court justices. The Supreme Court has discretionary review, and it only accepts a handful of petitions for review (this fact made the conservative effort to show Sotomayor had a high reversal rate a ridiculous venture). By contrast, the courts of appeals must render decisions in all cases presented to them.

The average case heard by the Supreme Court, however, tends to present more interesting and complex legal issues. Often, the cases have split the lower courts, indicating that the law is not fundamentally clear. According to some scholars, Supreme Court justices with prior appellate experience often take advantage of the new job and write broader opinions and more passionate dissents than they did as appeals judges, where consensus-building was far more important (given the panel structure). Although first-year justices are normally fairly reserved, sitting on the Supreme Court allows for greater depth and reflection than the normal appellate court position.

Update: David Bernstein of the Volokh Conspiracy agrees with me -- but he is less kind to Liptak's idea than I am.


Anonymous said...

Dear Mr. Hutchinson: Why tell whoppers like:

"The case load of judges in the courts of appeals is actually much larger than that of Supreme Court justices."

Ho much work did SS do on RICCI? a) a summary dismissal then when that was howled down b) a one paragraph order. The Supreme Court had to step in with 300 pages of opinions pro and con. I note that for all the workload you claim appellate judges have, SS had plenty of time to make her "wise latina" speech again and again.

You'd be on stronger ground if you noted the three month vacation the Supremes take each year, exhausted by their arduous days of playing bridge (Stevens) shooting ducks (Scalia), tooling around the countryside in a motor home (Thomas) or correcting proofs of the books their clerks write for them so they can make real dough (Rehnquist, O'Connor, Thomas, Breyer.) Bah. The greatest part of any appellate court is writing opinions, opinions that give clear direction on the law. This, and her native laziness, is why SS tried to bury RICCI. Any opinion she would write would defeat the policy (you remember policy: "It's what appellate court judges make, though I'm not supposed to say this" ---SS, amking a speech instead of working, yet again) she wanted. Worse, SS subscribes to the modern appellate judge's practice of letting clerks write the opinions, and then editing them. It would be hard to think of a more pernicious practice. Delegating speech writing for the President and high Executive officials and even members of Congress can easily be justified by the heavy work loads they have. What work does an appellate judge have:

a) listening to oral arguments of cases
b) thrashing out opinion assignments in conference
c) hearing applications for stays and appeals
d) writing opinions

d) is the most important task by far, yet it's handed off to clerks as a tiresome chore. How on earth can judges really know what they think until they try to write it?

Despite this, the number of opinions has fallen considerably from the mid-twentieth century.

You may have been right all along: the Supreme Court, with its laziness, power grabbing, and dumping of mistakes onto others, is just the place for such as SS.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...


I try to speak the truth AND stay on point. The article discussed caseloads. It was wrong. I corrected it. Ta da. By the way, the SCT takes about 3 percent of its appeals....The CTAs take all of theirs. Do the math.

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