SCOTUS Docket Shrinkage
The Supreme Court and It’s Shrinking Docket
Tim O’Connor – Center for the Preservation of Humanity - 6/5/2022
A guy named Steve Vladeck, an MSNBC Opinionist, wrote The Supreme Court is handing down its fewest decisions in decades. Here's what that means.
Vladeck is arguing for Congress to intervene into the docket of the Supreme Court.
First he points to the oddity of SCOTUS not issue any rulings this week. He sites the Roe v Wade issue being overturned and the shadow docket which is when the Supreme Court issues stays and such without recording votes or writing opinions.
Vladeck then notes that the court is not hearing as many cases as they once did. He even makes a passive reference towards SCOTUS being racist by comparing the number of cases being heard in the last few years to the number of cases the Court heard during the Civil War. Maybe it’s just that democrats have always used the courts to contort the Constitution to their aims.
In 1988 Congress gave SCOTUS almost full control over it’s own docket. Vladeck also points out that when SCOTUS does grant certiorari they can pick and choose which elements of the case they wish to hear arguments about. The causes for the decreasing numbers of cases heard by SCOTUS, according to Vladeck, is the shadow docket, and the lack of democratically-aligned justices on the Court able to grant certiorari.
Vladeck then dispels any liberal idea that the court hearing less cases may be a good thing. He notes there are far fewer court martial appeals and state criminal court appeals in the last several years.
This dude, Vladeck, who claims to have actually argued a case in front of SCOTUS, then states:
“Second, and more problematically, there are at least two contexts in which litigants depend upon the Supreme Court to make new law: in suits challenging unconstitutional conduct by state or federal officers, whether the officer is immune depends upon whether the rights he allegedly violated were “clearly established” at the time of the alleged violation. The less law that the Supreme Court clearly establishes, the harder it is for plaintiffs to overcome that hurdle. To similar effect, state and federal prisoners seeking to challenge their criminal convictions after their direct appeals have ended have to show not only that the conviction violated “clearly established” law, but that the law was 'clearly established' by the Supreme Court. When the court stops establishing law, those challenges are increasingly doomed.” (italics mine)
Go read the italicized part again if you missed it. If you still don’t get, I’ll explain it in a bit.
The remainder of the article is Vladeck demanding Congress reigning in SCOTUS and demanding they take certain cases. Perhaps Vladeck has never read the Constitution.
The Constitution itself sets the scope of the Court’s jurisdiction:
“Article III.
“Section. 1.
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
“Section. 2.
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
“Section. 3.
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” (italics mine)
The first section of Article III I italicized illuminate what Federal courts and SCOTUS are supposed to hear. The second set of italicized words shows that Vladeck is confused and wrong. The Senate is not permitted, by the Constitution, to give the Supreme Court the carte blanc ability to determine which cases they hear or don’t hear. In 1988 Congress violated the Constitution by giving SCOTUS the ability to decide the cases they hear by SCOTUS’ own determination. SCOTUS, not being very acute, and probably super excited about the new powers they had gained by Congress unconstitutionally granting them to SCOTUS, did nothing to stop that transfer of power. What this did is help to destroy the separation of powers.
The history of the United States is nothing if not a continual, gradual, and pervasive consolidation of power by the federal executive branch of government. Included in this consolidation are successful and several unsuccessful attempts to wrest control from the States, the Courts, the Senate, while, mostly abrogating and destroying the rights of the people.
My final point about this idiotic writer, Steve Valdeck, and his stupidly articulated pontification about what the Supreme Court is and is not supposed to do I cannot ignore the multiple instances where he declared the Court makes law. The Supreme Court is not given Constitutional permission to make law. Congress is given the ability to make law. The Supreme Court is given the ability to determine the Constitutionality of those laws. Roe v Wade was an aberration. Obergefell v Hodges was another aberration. But neither of these are law. These rulings are the Supreme Court deciding they can make the laws of the United States – exactly what this idiotic MSNBC writer desires.
He doesn’t want a legislature, he wants a judicial body to make up law as they go. We had a revolution over that. The Magna Carta was written because of the same issues, which set the precedence for the American Revolution. The Spanish Inquisition was prosecuted because of the judiciary making law. The Russian revolution was determined by sham trials executing ‘laws’ made by the Bolsheviks which sentenced people into the Gulag Archipelago….
Maybe Valdeck should take a step back here and really consider what it is he is advocating for.