Frederick Schauer (University of Virginia School of Law) has posted Is it Important to Be Important? Evaluating the Supreme Court's Case Selection Process (Yale Law Journal, Vol. 119, 2009) on SSRN. Here is the abstract:
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The Supreme Court has been criticized for taking and deciding too few
cases, with its current full opinion output down to 70 cases a year
from 150 or more as recently as the middle of the 1980s. Much of the
criticism has centered around the Court’s reluctance to decide
important cases, but sorting out the criticism depends on an
understanding of what we mean by “important.” It is true that the Court
decides very few of the important issues of our time, and the distance
between the Court’s docket and current concerns about health care,
jobs, the economy in general, bank bailouts, auto company bailouts,
executive compensation, wars in Iraq and Afghanistan, and the nuclear
capability of Iran and North Korea underscore this gap. Current public
opinion polling updating Schauer, “Foreword: The Court’s Agenda - and
the Nation’s,” 120 Harv. L. Rev. 4 (2006), confirms that there is no
change in the gap between the two agendas, and little suggests that
there is anything wrong with this. But if we turn from the question of
social and political importance to legal importance, it appears that
the Court is failing to resolve many of the issues that appear with
great frequency in the lower courts, and as to which the law is highly
uncertain. The Court’s increasing failure to adequately perform the
function of guiding the lower courts is indeed a problem, a problem
caused in part by the lack of a way for the Court systematically to
obtain accurate information about the array of often-litigated issues
in need of resolution. The Essay concludes with possible suggestions on
how the informational deficit and informational distortion might be
corrected.
