an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Digital Archive of the Papers of Harry A. Blackmun
The decline in the Supreme Court's plenary docket presents one of the great mysteries of the last decade or so. In his forthcoming book, How Judges Think, Judge Richard A. Posner suggests a possible, and novel, solution. He writes that appellate court judges promoted from trial courts are more likely to affirm "because they are more cognizant of the advantages that the trial judge has over the appellate court in gaining a deep understanding of a case."
Applied to Supreme Court, is it possible that the increase in the number of justices coming from appellate courts has led to the decline? The figure above, plotting the proportion of petitions granted and the proportion of justices from the circuits, is suggestive.
Suggestive but hardly conclusive. The trend depicted in the figure is broadly consistent with many other explanations. Moreover, making a case for the role of judicial biography requires an examination of the individual justices' grant rates.
Enter the Blackmun Digital Archive. With support from the National Science Foundation, Jeff Segal, Harold Spaeth, and I created it to house documents from the Harry A. Blackmun Papers located in the Library of Congress. In the Archive now are preliminary [pool] memoranda and docket sheets from Blackmun's years on the Rehnquist Court (1986-1993 terms).
We hope its contents will interest a wide range of users, from those looking for the votes (and clerk recommendations) in specific cases to those hoping to analyze trends in the Court's decisions and case selection---including, of course, the decline in the docket. In fact, Jeff and I---joined by Andrew Martin and Kevin Quinn---are now systematically organizing the cert votes for that very purpose. (For other uses for the Archive, check out Orin Kerr's post over at The Volokh Conspiracy.)
Gotta' agree with Posner on this one. I had the opportunity to clerk for both an appellate bench and a large, busy trial circuit. I will suggest another alternative, one based on my personal experience; that the vast majority of our trial courts do it right. IMHO, knowing that you were apt to be affirmed, we tried damned hard to make sure we got the law correct, thus did not create terrible, policy-driven decisions haunting future litigants. Of the two, hands-down, trial judges have to be more cognizant of these factors, especially with so many first-impression issues and in the fast-paced world of litigation.