If you're mystified about why the Supreme Court hears so few cases these days -- 75 or so annually, compared to twice that number 25 years ago -- Justice Stephen Breyer says, check back a few years from now. The deficit will be over, he predicted on Thursday, because of litigation over the just-passed health care bill.
Breyer and Justice Clarence Thomas were asked about the Court's shrunken docket at the Court's annual budget hearing before the House Appropriations Committee's subcommittee on financial services and general government.
It's an oft-asked question without a clear answer, Thomas indicated, but Breyer, the former law professor, jumped in, laughing that "I don't need any evidence. I like theories." One theory he offered is that the Court's docket tends to increase a few years after passage of a major piece of federal legislation -- such as ERISA and AEDPA in years past. The words of the laws need to be interpreted, producing litigation that eventually gets to the Supreme Court. When those cases are resolved, the docket dips.
"You have passed a 2,400-page bill," Breyer told the committee members, and he guessed that in such a lengthy bill, "there are a lot of words in it." As a result, he said, "in two or three of four years," nobody will be asking justices about the shortage of cases, because litigation stemming from the bill will be filling the Court's docket.
Breyer's prediction was just one nugget from the always-interesting annual meeting between the legislative and judicial branches. The Court's $78 million budget was the topic of the hearing, but members of Congress always use it as a vehicle for getting into favorite subjects -- most notably, diversity in law clerk hiring, and camera access to the high court. The hearing was broadcast live on c-span.org.
The perennial law clerk diversity discussion produced a somewhat testy exchange between Thomas and Rep. Barbara Lee, D-Calif., Thomas had offered the standard explanation for the low level of diversity among clerks; namely, that the pool of appeals court law clerks that the justices draw from tends to be overwhelmingly white. "The reality is, Hispanics and blacks don't show up in any great numbers," Thomas said.
When Thomas has said that before, it usually ends the discussion, but Lee kept it going by pointedly demanding that instead of passively accepting the complexion of the pool, the Court should aggressively seek to expand it. She said a "concerted effort" is needed, adding that some of the Supreme Court's own rulings might have "shut out persons of color" from the law schools that feed the pool -- though she did not specify which rulings. "How do we change that?" she asked. "We don't want a Supreme Court that discriminates de facto." She urged the Court to issue an "edict" announcing its desire for more minority applicants. Lee also asked for a report from the Court on the demographics of its clerks.
Thomas at first insisted that it isn't up to the Court to increase the pool, but later returned to the subject and said that Lee had a good point. "A lot of our hiring depends on people we know," he acknowledged. It was not clear what steps Thomas will take to spread the word, but it seemed, at least, that he was considering some more pro-active steps.
Subcommittee chairman Rep. Jose Serrano, D-N.Y., who has raised the clerk diversity issue for years with the justices, said the issue is "still a concern" for him, and in the wake of today's discussion said, "Something has to change."
Rep. Adam Schiff, D-Calif., also seemed to advance the ball somewhat on the other perennial topic of the budget hearings: cameras in the Supreme Court. He said the Court is "the best situated" to have broadcast access, because its proceedings have no jurors or witnesses. It is increasingly anachronistic, Schiff said, for the Court to keep cameras out, and he urged the justices to at least experiment with allowing cameras to record its proceedings.
Breyer trotted out his usual reply, that he is looking for "serious studies" to determine the effect of cameras -- here, it seemed, Breyer needs evidence, not just theories -- to increase the Court's "comfort level" with cameras. "We're not there yet." Breyer added that if the Court tried a pilot project, it could never withdraw access after having tried it. "There is no going back," said Breyer. "You have to decide."
To which Schiff said that the only way to increase the comfort level is to just take the plunge. "You might as well plunge forward." Breyer did not budge, but he had to return to the Court feeling another nudge from Congress on a point that is a continuing cause for friction between the branches.
This article first appeared on The BLT: The Blog of Legal Times.