In an appearance at New York University School of Law on Monday, Democratic-appointed Justice Elena Kagan suggested the Supreme Court would be better off spending less time dealing with a flurry of unanticipated petitions, which often result in short-term resolutions that don’t address the underlying the problems raised by disputing parties.

“It’s a very difficult problem,” Kagan said on Monday. “I don’t think we’re doing our best work this way.”

Kagan, who is one of three members of the left-leaning bloc on the Republican court’s 6-3 majority, explained that the pattern of increased summer activity began at the end of the Trump administration and has continued through President Joe Biden’s four years in office.

“It’s a symmetrical problem: it doesn’t matter who’s president,” Kagan said. “Governments and non-governmental parties began to come to the court in ever-increasing numbers.”

In recent years, the Supreme Court has granted certiorari, meaning it agreed to hear oral arguments and issue a final written opinion, in about 60 cases per semester. On the contrary emergency docking operations tend to be more opaque. Parties involved in litigation, particularly in cases involving contested government policies, often engage in heated debates about which rules should be enforced while the case is in lower court. Judges are usually given short submissions and resolve these requests with minimal explanation. However, the Supreme Court’s decision can have quick and significant real-world effects.

What is the reason for the increase in emergency requests?

At the end of this summer break, which will end around the last week of September, the justices will have processed at least 25 emergency applications, according to a compilation hosted by Georgetown University Law Center Professor Steve Vladeck. In 2021, 2022 and 2023, the range was between six and 15 applications per summer.

As it stands, the Supreme Court is tearing through three different pools of emergency petitions over various Environmental Protection Agency rules, involving more than two dozen Republican-led states challenging regulations pushed out by the Biden administration earlier this year.

In a recent post to his One First blog on Substack, Vladeck said the most “ripe” dispute for decision surrounds eight applications for the Biden administration’s new limits on power plant emissions, noting that it “would not be surprising” if the Supreme Court issued a ruling on that dispute this week.

In recent months, the Supreme Court’s emergency docket has also included cases on separate political disputes ranging from gender discrimination rules in schools under Title IXvoter registration procedures i battlefield in the state of Arizonaand Biden’s alternative yet costly plans to help student loan borrowers.

Gorsuch discusses ‘shrinking’ caseload during regular court season

As the emergency report grows during the Supreme Court’s summer recess, another trend that has prompted comments from judges and court watchers alike is the apparent “shrinks” number of cases that the Justice Council hears between October and June at each annual oral argument. For example, the Supreme Court took somewhere between 80 and 90 cases per term between 2009 and 2010, and that number has steadily declined to about 60 per term in recent years.

Speaking at a conference of the U.S. Court of Appeals for the 10th Circuit last week, Judge Neil Gorsuch, one of three appointees of former President Donald Trump, suggested that the decline in the Supreme Court’s caseload is due to a decrease in the total number of appeals reaching the judges .

“Maybe it had something to do with the pandemic, and some lower courts were closed for long periods of time, and maybe there is a backlog. Maybe it has to do with waivers in criminal cases. I don’t know,” Gorsuch said. “Perhaps it has something to do with the rise of technology, which makes it so much easier for all of us to know if there is a circuit split.” Gorsuch continued, “It seems to me that if lawyers want our court to take more cases, they may need to file more petitions.”

Some veteran advocates agree that more cases are needed per semester

The shrinking caseload for the justices during their regular session is a phenomenon that even experienced high court litigators, such as former George W. Bush administration Solicitor General Paul Clement, suffered earlier this summer. Clement said he thinks it would be good for the Supreme Court to take on more cases per term.

“I will say that my own view is that the court takes too few cases. Now, as someone who files an occasional writ petition, I have a vested interest in the court taking more cases, but I still objectively believe that it is better for the court when they have a fuller review, said Clement, who was the lead attorney in the case this year that saw the justices rule 6-3 to overturn Chevron doctrine, which had given agencies broad deference to set policy agendas under respective administrations.

Speaking to a crowd in Washington, DC, at the Federalist Society’s 2024 annual Supreme Court Round Up event, Clement suggested that the lack of cases compared to recent decades could perpetuate a misguided notion that the judiciary only takes on “controversial cases. “

“And if the court only takes 60 cases, that means when people look at the court, they might think, ‘Wow, all you’re doing is, like, race, abortion, and Trump,’ and I think they wouldn’t be. very wrong if the court only takes 60 cases, on the other hand, if the court takes closer to 80 cases, I think it’s a little easier to point to the idea that the court actually takes a variety of cases and is very often unanimous in deciding those cases, says Clement.

Gorsuch said from the 10th Circuit conference last week that roughly 40% of the Supreme Court’s decisions this term were decided either unanimously or 8-1.

“In my view, that’s not bad for a court tasked with resolving some of the most difficult legal issues in the country,” he said.

Sotomayor expressed fatigue amid calls for more work

Speaking about the difficulties facing the Supreme Court, Democratic-appointed Justice Sonia Sotomayor said in January of this year that the workload has become “bigger” and more “demanding” in recent years.

“The number of amici is larger, and you know our emergency calendar is so much more active. I’m tired,” Sotomayor said. “There used to be a time when we had a good chunk of summer break. Not anymore. The emergency calendar is busy almost every week.”

While the issues discussed by Kagan, Gorsuch and Sotomayor reflect their respective personal views, their comments taken together show that the Supreme Court led by Chief Justice John Roberts is grappling with challenges involving its workload and public perception.

After taking the sledgehammer to the administrative state to create a “rule for the ages” on the issue of presidential immunity stemming from Trump’s impeachment, the justices are preparing this year for another big term beginning in October, which will again have them weighing controversial issues, including ban on firearms, transgender minors proceedingsa death penalty case involving a alleged wrongful convictionand much more.

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But for now, only 28 cases have been taken up for certiorarimeaning the umpires are less than halfway to matching their batting average for this era of the Roberts Court.

As the Supreme Court’s annual long conference in late September approaches, the justices will try to add a series of cases to their schedule for the term. They will also issue a barrage of denials, as the judges receive thousands of petitions each year.