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The Dwindling Cert. Docket: Why Are Fewer Paid Petitions Being Filed?

With the start of the summer recess, the Supreme Court discontinued use of the 2010 Term docket numbers, ending with number 10-1558—a petition for mandamus filed by firefighter Frank Ricci. Yes, that Frank Ricci.

For the fifth straight year, the number of paid petitions for certiorari, mandamus and original habeas corpus filed in the High Court has dropped. Here are the numbers: 

  • 2010 Term: 1558
  • 2009 Term: 1580
  • 2008 Term: 1596
  • 2007 Term: 1614
  • 2006 Term: 1723

In the past, Court watchers have noticed a steady decline in the number of cases that are heard “on the merits.” And scholars have proposed a number of reasons for this phenomenon.

But few have attempted to explain why the number of paid petitions has dropped in recent years.

So I will start this discussion by throwing out some possible reasons for the reduced numbers.

I will start by sharing my unusual vantage point. I write petitions for attorneys throughout the country, and I work at one of the largest Supreme Court brief printers. So I get to see the cert. stage from the bottom up.

I believe there are three main reasons why the number of filed paid petitions has shrunk every year since 2006. First, the numbers for 2006 are artificially elevated because, in early 2005, the Court decided United States v. Booker, which declared the US Federal Sentencing Guidelines unconstitutional. In 2005 and 2006, federal prisoners filed cert petitions in droves (paid petitions included) and that is why the number in 2006 is higher than normal.

Second, the Solicitor General continues to file fewer cert. petitions each year. From 1997 to 2000, the SG’s Office filed on average 31 petitions a year. From 2001 to 2004, they averaged 29 a year. In the 2010 Term, they filed 16.

Third and most importantly, I believe the economy has led to fewer paid petitions being filed. At Cockle, we have noticed a large increase in the number of pro se party filings. The economic downturn means that individuals have less money to hire attorneys and even those with money are increasingly unable to afford the rate for attorneys with some sort of SCOTUS success.  Some still file pro se; many simply don’t file at all.

Some small business clients are also balking at the price. Once the client weighs the attorney, printing, and filing fees, they decide the less than 5 percent odds of the Court granting cert. are not worth it. 

I am sure there are other factors out there, which is why I posed this question to a few SCOTUS experts. The responses are below:

Orin Kerr, George Washington law professor and blogger at The Volokh Conspiracy:  I don’t know, so this is just speculation: The Court has had a pretty small merits docket for the last few years: Fewer new Supreme Court cases may mean fewer disagreements on the meaning of those cases, fewer splits, and therefore fewer paid cases trying to get the Supreme Court to resolve the uncertainty.

Kathryn A. Watts, University of Washington law professor: This is a good question, and all I can do is speculate about the answer.  But I tend to agree with you that one explanation may rest with the economy.  As you point out, more and more potential paid cert filers may be choosing not to file because of “belt tightening” measures that have occurred during the economic downtown. 

A SCOTUS practitioner, who wished to remain anonymous, said that the reduced cert. docket maybe a result of the Supreme Court bar’s ability to winnow out frivolous petitions by increasingly advising clients to not file for cert.

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Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

Cockle Blog will occasionally provide opinions on certain cases and Court procedures. These opinions should be viewed with the recognition that no one can predict with certainty how the Supreme Court will rule on particular cases. Any reliance on articles contained in Cockle Blog must be done at one's own risk.