The justices, of course, could commit to taking up more cases. But the real solution here is Congress. For the first 198 years of the Supreme Court’s existence, there was a healthy, ongoing, interbranch dialogue between Congress and the court over the shape and scope of its docket. When the docket became too crowded, it was the justices themselves who asked Congress for relief, and Congress acquiesced. The same should be true in reverse: Congress ought to seriously consider whether it went too far in 1988, and whether the time has come to restore some of the court’s mandatory jurisdiction — appeals that the justices have to hear, such as suits seeking nationwide relief against federal policies, or appeals from death-row inmates.
Reasonable minds will surely differ about how Congress should approach reforms to the Supreme Court’s docket. What ought to be clear, though, is that it’s long past time for Congress to tackle the question head-on. We might prefer a court that has less work to do, but the systemic implications of a court with an evaporating docket are, however counterintuitively, bad for everyone.
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