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Copyright (c) 2001 By the School of Law, Washington & Lee University
Washington & Lee Law Review

ARTICLE: The Supreme Court's Plenary Docket

Summer, 2001

58 Wash & Lee L. Rev. 737


Margaret Meriwether Cordray*, Richard Cordray**


Twenty-five years ago, controversy raged over the size of the Supreme Court's docket. Two very different concerns animated the critics: first, that the Court's workload was unmanageably large; and second, that the Court's capacity for deciding cases was no longer adequate in light of the burgeoning caseload in the lower courts. 1 These concerns were considered so pressing that scholars and legislators developed serious proposals to institute a national court of appeals to relieve the Court's burden and to expand the total appellate capacity. 2

At that time, the Court was issuing about 150 plenary decisions per Term. 3 Just over a decade later, the Court's docket began to plunge, reaching its modern nadir of 76 cases in the 1999 Term. 4 With the plenary docket reduced so dramatically, concerns about the Court's workload understandably abated. Commentators, however, have remained strangely silent about the second concern - whether the limited size of the Court's docket enables it adequately to supervise and guide the lower courts. 5 This silence is all the more surprising, given that the Court's production has now fallen so far below the levels that alarmed commentators in the Burger Court era.

We think that issues concerning the appropriate size and shape of the Supreme Court's plenary docket warrant further consideration. But in order to have an informed discussion on those issues, it is first essential to develop a more complete understanding of the causes of the dramatic change that occurred between the Burger and Rehnquist Courts. 6
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