NCPA - National Center for Policy Analysis

A Minimalist Supreme Court?

December 23, 1998

Judicial observers note that the U.S. Supreme Court is issuing fewer opinions and increasingly refusing to hear petitions brought to it.

  • Last year, the Court issued 93 signed opinions -- compared to 170 in 1981.
  • Petitions today are five times more likely to be denied review than they were 20 years ago.
  • The Court accepts just 1 percent of the appeals filed with it -- compared to 5 percent in 1978.
  • Recently it refused to review a state supreme court decision involving the use of publicly funded vouchers to pay for education in church-related schools.

When a hearing is denied, the court is not endorsing a lower court ruling. But the effect of the higher court's inaction is to make that lower court ruling the law of the jurisdiction it came from -- even if that law conflicts with what other jurisdictions have decided on the same issue.

As a result, some critics say, the Supreme Court is risking one of its core functions -- which is to bring a measure of consistency to the law, so that legal rules on issues ranging from affirmative action to parochial school aid are the same nationwide.

Some observers have noted that what they view as a conservative Supreme Court finds little to change in the opinions of conservative lower courts. But USA Today found that the court reviews cases that are appealed from the liberal U.S. Court of Appeals for the Ninth Circuit at a rate twice as high as cases from the more conservative Fourth Circuit. In fact, two terms ago, the court reversed 28 of the 29 Ninth Circuit rulings it reviewed.

Source: Tony Mauro, "Court's Inaction Allows Confusion," USA Today, December 23, 1998.


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