— in the middle of the Civil War. And although the 2019–20 total was necessarily affected by the onset of the Covid pandemic , the trendline is, by now, unmistakable: The Supreme Court is handing down fewer and fewer merits decisions each term., allowing the justices to pick and choose almost every case that they hear.
Justice Ruth Bader Ginsburg’s death in 2020 means that there’s no longer a fourth vote for cases in which it’s the liberal members of the court who want to hear the appeal. There are lots of potential explanations for this trend. Among other things, the court is spending more and more time on the “shadow docket,” which are orders that don’t go through the plenary review process even though they often produce significant substantive effects.
To those who don’t like much of what the current court is up to, this development may seem like a positive one; a court handing down fewer decisions is, presumably, one that can do less damage. But there are at least two respects in which the shrinking of the court’s docket is problematic even for those who might prefer that this particular court do less. First, there are entire swaths of lower-court decisions that the justices appear to be all-but ignoring.
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