Solicitor General: Supreme Court's shrinking caseload due to fewer laws enacted by Congress

The Supreme Court’s diminishing caseload is likely a reflection of a preceding fall-off in new legislation by Congress, U.S. Solicitor General Paul Clement ’92 speculated in remarks delivered at Harvard Law School’s fall reunion exercises. Fewer new laws mean fewer lawsuits challenging or seeking clarification of new legislation, he said.

In prepared remarks, Clement talked to an audience of several hundred alumni about the work of the solicitor general, noting that Supreme Court advocacy on behalf of the government is just the “tip of a larger, much less visible iceberg” of work done by his office.

Saying that “monopoly power can be a very good thing,” Clement described his role as a gatekeeper with unfettered power to deny most of the voluminous requests from federal agencies seeking his approval to file appeals in the Supreme Court. He said he routinely declines most such requests in order to bring only the most meritorious claims and to preserve the integrity and reputation of his office as a valued assistant to the Court in screening cases.

Approximately 7,000 certiorari petitions are filed annually, of which the Court has recently taken only about 70, or one percent, Clement said. By contrast, the Court has been granting about 70 percent of the cert. petitions filed or backed by the Solicitor General’s Office.

But the number of cases taken by the Court has been declining in recent years, from about 150 merits cases per year in the mid-1980s down to about 80 a few years ago and this year’s historic low of 68.

Asked to explain why, Clement said: “The explanation which I think has the most explanatory force is that there is a sense in which the Court’s docket, particularly in the statutory area, is a kind of time-lag reflection of Congress’s activity.” Adding that the lag between a new congressional act and Supreme Court litigation over it is typically about 10 years, he said: “Congress 10 years ago was not passing as much new, landmark legislation as they were before.”

A second reason for the decline, Clement speculated, is that there has been a decline in splits between the circuit courts over major issues, requiring fewer resolutions by the Court.

But Clement pointed out that the Court’s current term started with twice the number of certiorari grants as last year, and that the downward trend may have bottomed out.

Clement observed that the number of questions asked by the justices during oral arguments has jumped significantly in recent years, which he attributes to the panel’s dominance by Harvard-trained lawyers. Clement offered the observation with humor, but backed it up with hard numbers. In the mid-1980s, the justices asked about 100 questions per hour of oral argument. But ever since 1993, when Harvard-trained lawyers became a majority on the Court—and especially since the appointment of John G. Roberts Jr. ’79 as Chief Justice—the justices have been peppering counsel with upwards of 150 questions per hour. In two recent cases, Clement said, 90 percent of the questions were asked by the six justices who attended Harvard Law School.

Click here for a webcast of the event.