Docket Capture at the High Court ( Draft 9 / 18 / 09 ) Richard

The declining numbers of cases on the Supreme Court’s plenary docket may or may not be a problem. After all, there are lots of good reasons that could happen, including the obvious possibility that the Court was previously hearing too many cases that did not warrant plenary review and is now doing a better, not worse job, of picking cases. But while the mere fact of fewer cases is not necessarily problematic, what is worrisome is the very real possibility that the Court’s plenary docket is increasingly being captured by an elite group of expert Supreme Court advocates dominated by those in the private bar. In short, the same way that powerful economic interests can capture an agency or any other entity that purports to control them, so too may the Supreme Court’s docket be “captured.” It is, accordingly, not the numbers of cases on the plenary docket, but their content that may be the real problem.