Document Type

Article

Publication Date

1987

Abstract

Recent writing about the Supreme Court has stressed the implications of the extraordinary growth in the Court's docket-and, even more, the growth in the overall level of judicial activity in the nation's courts-for its performance of its judicial task.' Generally, this writing seeks first to determine whether the Court has been forced to bypass questions it ought normally to hear (for example, square conflicts between two of the federal circuits),2 editorializes about the increasing bureaucratization of the Court, 3 and passes on to normative questions about what if anything ought to be done to ease the Court's burden. Scholars debate how many conflicts are being let slide, sometimes reaching the reassuring conclusion that the number is little if at all larger than the number of cases unwisely or unnecessarily heard.4 They worry about the impact on the general quality of the Justices' intellectual efforts of having more law clerks to supervise and less time per vote to consider the matters on their plate.5 Contention then turns to whether we should have an intercircuit tribunal to resolve questions that are important (but not too important); 6 how such a tribunal ought to be arranged in relation to the Court; or whether, perhaps, the real solution lies in specialized appellate tribunals7 or in more thoughtful efforts by Congress to prevent statutory controversy by careful drafting or periodic legislative revision.8 This Article is principally concerned with a question that seems not to have been much asked in these debates: whether, and in what ways, the stresses on the Court might be manifesting themselves in its opinions and, particularly, in doctrine. It starts with a brief presentation of the Court's well-known caseload problems, presenting them in relation to the overall dimensions of the judicial system in the United States. Looking beyond the Court's success in identifying and resolving particular, actual conflicts among the lower courts, this perspective treats as the central problem of interest the Court's shrinking opportunity to contribute discipline, cohesion and control to the nation's law. The essay then examines three different respects in which it might be thought the natural limits on the Court's opportunities to speak are shaping the character of the legal order.

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