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An Event History Analysis of the
Supreme Court’s Work in the 1948-2010 Terms
(version 3.7)
Mintao Nie
Eric N. Waltenburg
William P. McLauchlan
Purdue University
Abstract: What explains the variation in the amount of time it takes the U.S. Supreme Court to process (i.e., terminate) a case appealed to it? We hypothesize that the Court’s processing time is a function of case characteristics and institutional features, Using event history analysis to model the hazard rate of all paid petitions made to the Court between 1948 and 2010 in six different issues areas, we find case complexity, case salience, and docket size affect processing time in theoretically consistent ways. However, we find no evidence of the effect of ideological heterogeneity among the justices on the Court’s processing time.
Paper prepared for presentation at the 2014 annual meetings of the Western Political Science Association, Seattle, WA.
30
An Event History Analysis of the
Supreme Court’s Work in the 1946-2010 Terms
The Supreme Court’s work has attracted the attention of scholars for some time. To a substantial degree, the focus of this attention has been the substantive decisions the Court reaches. Some attention, however, has also been paid to the amount of work the Court handles and the time involved in completing that work – i.e., screening the 1000s of appeals and petitions made to it each term and then rendering substantive decisions on those few cases the Court decides to decide (for example, Frankfurter and Landis 1928; McLauchlan and Waltenburg Forthcoming). Some of these latter analyses, while documenting the Court’s workload, are largely prescriptive in nature.
The research we report here explores and explains the time it takes for the Court to process its workload. Now, understanding this aspect of the Supreme Court’s work is of no small consequence. To the Court, possessing neither the purse nor the sword, its legitimacy is of profound importance; and two pillars of an institution’s legitimacy are procedural fairness and efficiency (Weatherford 1992). Thus, how the Court processes its workload affects its precious store of institutional credibility. To begin, potential litigants might be discouraged from seeking resolution in the Court if the perception takes root that it is unable to dispose of their cases in a timely manner, and this may disproportionately affect certain types of litigants. After all, some litigants (e.g., most individuals) are less able to wait (more or less patiently) for the Court to process its business. As a result, these litigants may be especially discouraged from locating their efforts in the Court, and the Court, therefore, effectively becomes closed to them as a venue in which to pursue their policy goals. Procedural fairness requires that “access to decisional arenas is open and equal” (Weatherford 1992, 150); but according to these potential litigants’ perceptions, the Court, as a decisional arena, is not equally open to them.
Second and relatedly, if the Court is perceived as inefficient and incapable of performing its job – i.e., of processing its workload in a timely manner – it will likely see its institutional credibility erode. This “keeping the trains running on time” aspect of political legitimacy taps evaluations of an institution’s policy outputs. Inefficient institutions produce less satisfactory policy outputs, outputs that the mass public is less likely to accept or tolerate. And since the Court is a reactive institution, efficient, timely outputs may be even more consequential to it. Indeed, although it is well worn, the expression justice delayed is justice denied is not threadbare. Untoward delays can have a deleterious effect. Simply put, if delays become so common that they are expected, the Court’s capacity to persuade individuals to accept or tolerate unpopular policies may well be degraded. After all, if the Court’s decision on a controversial policy is so removed in time from the policy’s initial implementation that the mass public has accommodated itself to the policy, the Court’s decision is all but irrelevant. It is a bit like shutting the barn door after the horse has bolted.
What, then, affects the Court’s processing time? Theoretically, we expect that the amount of time it takes for the Court to process its workload is a function of inputs and institutional features. We test this expectation by examining the amount of time it takes for the Court to fully process any paid appeal (i.e., the number of days elapsed between the filing for a writ of certiorari and that appeal’s final disposition) filed with it between 1948 and 2010 in six different issue areas (n = 7314). Using event history analysis, we find evidence that supports our expectations. Both case and institutional characteristics affect the Court’s processing time in a manner consistent with our theory.
We present and discuss these results in section 3, which follows a description of our data and methodology (section 2). We conclude in section 4 by taking stock of our findings and offering suggestions for future research. But first we turn to the identification of forces we expect are related to the amount of time it takes for the Court to screen cases and then render final judgment on those very few it deems worthy of its full attention.
I. Toward an Explanation of Supreme Court Processing Time
The Court disposes of its work in a two-stage process. First it screens cases, deciding which cases warrant its full attention (ds). The vast bulk of cases that come to the Court do not clear this first stage. The Court rejects between 85 and 99 percent of the fillings presented to it for decision.[1] Those very few cases that are accepted for review are then decided on the merits. These cases will have additional periods of time in the system. There is the period between the screening decision and the conduct of oral argument (dp). Finally there is a period of time after oral argument while the members of the Court prepare (majority, concurring, or dissenting) opinions in the cases after the Court reaches its decision on the merits (do).
As a result of these phased steps in the process, the total time a case is before the Court (Dt) is represented by this simple function:
Dt=ds+dp+do
Each of these components is a period of time rather than a point in time. So each component can be analyzed separately or in total. In the analysis that follows, we examine separately the screening time (ds) and the amount of time between oral argument and the Court’s announcement of its merits decision (do).[2]
Although there is a large body of literature on the Court’s decisional processes at these two stages, there is very little existing research on the amount of time it takes for the Supreme Court to arrive at these decisions (ds) and (do). There are several studies, however, that examine the efficiencies and processing time at other levels of courts in the United States (see, for example, Heise 2000; Christensen and Szmer 2011; Szmer, Christensen, and Kuershen 2012; Goelzhauser 2012; Cauthen and Latzer 2008). This research suggests that case and institutional characteristics will affect the amount of time it will take for the Supreme Court to dispose of an appeal.
Among the key features of a case are its legal complexity, whether it is salient, and the nature of the litigants. Complex cases involve multiple legal issues and questions. They permit the justices greater freedom to pursue their policy preferences because these cases do not have clear legal provisions that guide their resolution (Baum 1997, 66). Complex cases, thus, might present just the type of legal controversies the Supreme Court is predisposed to hear. Thus, they may effectively be “fast tracked” onto the Court’s docket. We hypothesize, therefore, that complex cases will spend less time at the screening stage (ds). Complexity, however, might have just the opposite effect at the merits stage. There is a greater likelihood of disagreement among the justices on complex cases, which would extend the amount of time it takes for the Court to arrive at a decision and dispose of them (do). Accordingly, we expect that complex cases would take longer for the Court to process and reach its final decision on the merits.
We expect that the effect of case salience on processing time will be similar at both stages of the Court’s decisional process. Bartels (2011), for example, has shown that the justices are more apt to engage in ideological voting in salient, high visibility cases (see also Christensen and Szmer 2011). Like complexity, then, salience engenders disagreement among the justices. Accommodation of different legal positions in written opinions and cobbling together or maintaining a majority coalition takes time. Thus, we hypothesize that salient cases take longer to process at the merits stage (do).
Salient cases, however, might be more rapidly screened (and docketed). Caldeira and Wright (1988) have demonstrated that the Court seeks to decide cases with broad social, economic, or political consequence – i.e., salient cases. When a case attracts broad public attention and/or is expected to have substantial impact is appealed to the Court, it seems unlikely that the Court will find itself spending much time deciding to decide that case. We hypothesize, therefore, that salient cases are screened more rapidly (ds).
If the United States is a party to the appeal, the amount of time it takes for the Court to process the case might be affected at either stage. At the screening stage, the U.S. as a party is strong indication of the case’s consequence. We know from the docketing literature that when the federal government is the petitioning party, the Court is significantly more likely to grant the appeal (see, for example, Tanenhaus et al. 1963; Caldeira and Wright 1988). Thus, we expect that screening time will be shortened when the U.S. is present on the appeal (ds).
By the same token, the federal government is unlikely to be a party to a legally “simple” case. It is more likely that complexity is a common characteristic to these cases, and we hypothesize that the United States as a party will increase the amount of time it takes for the Court to reach a merits decision (do).
Along with the inputs of the cases and their characteristics giving shape to the Court’s workload, we expect that the Court’s own institutional features affect its capacity to process this workload as well. First, the size of the Court’s docket, particularly the incidence of cases carried over from previous terms should affect the Court’s processing time (see Christensen and Szmer 2011; Szmer et al. 2012; Cauthen and Latzer 2008). Cases awaiting resolution require resources and time that might be spent on processing new cases. We hypothesize, therefore, that the greater the number of cases carried over from previous terms, the longer it will take the Court to process cases at both the screening and merits stages (ds) and (do).
There were two events that relate to Supreme Court processing cases. These might affect the time it takes the Court to screen or decide cases. First, in 1972, the Court established the Cert Pool. This involves rotating several law clerks through the process of reading and preparing Pool Memos on all the case filings for a period of time (O'Brien 2014). These memos are distributed to the members of the pool as a shorthand method for each of the justice’s chambers to assess whether to explore the petition more closely. This replaced the prior practice of each justice’s chambers processing all the Cert Petitions by whatever procedure each justice established. The intended effect of this change was to reduce the amount of time it takes the Court to screen cases (ds). So this event, even though all nine justices did not participate in the pool, provides a demarcation that might be reflected in shortened screening time.
A second event was the enactment of the Supreme Court Case Selections Act in 1988 (102 Stat. 662; codified in 28 U.S.C. § 1257.) This statute removed the Court’s appellate jurisdiction as a matter of right. This made the discretionary Writ of Certiorari the only avenue of appeal to the Court. The purpose of this statute was to reduce the waiting time between screening and oral argument, and thus to speed up the entire decisional process for those cases that the Court decided to review on the merits. As a result we might expect that the processing time for Supreme Court cases, decided on the merits, to be decided more quickly than before the enactment of the statute. Thus, after the start of the 1988 Term the cases decided on the merits might take less time than before this event (do). This assumes that the Court’s screening of the entire set of paid cases using Certiorari will take less time than if the paid cases are divided into two sets, those with mandatory review (Appeal) and those governing by Court decisions (Certiorari). This assumption may not be correct. So we cannot predict (hypothesize) whether the change in jurisdiction will speed up, slow down, or have no effect on screening time.
Finally, the diversity of the Court, its ideological heterogeneity, may affect the amount of time it takes to process a case. Diverse Courts are more likely to have difficulty arriving at collective decisions (Christensen and Szmer 2011; Szmer et al. 2012; Cauthen and Latzer 2008). This should extend the amount of time it takes for the Court to arrive at a majority opinion (do), but the effect of diversity also might be felt at the screening stage (ds).
II. Data and Methodology
The Data
We put these hypotheses to the test by examining the Court’s processing time with respect to the paid appeals in six categories of cases – abortion, antitrust, apportionment, environmental law, preemption, and eminent domain/takings. As we discuss in greater detail below, some of these hypotheses will be tested on the universe of paid filings between the 1948 and 2010 terms of the Court in these categories (n = 7314). Because of data limitations, however, other hypotheses will only be tested on the subset of appeals for which the Court granted review on the merits. The decision to concentrate on the processing time associated with cases involving these particular issue areas ensures that we have measures of the amount of time it takes for the Court to process its workload on cases that exhibit certain archetypical features with respect to doctrinal development, the demand for adjudication, and broader societal or political controversy.