27 December 2006

When Does SCOTUS Reach Out?

We also had a question from a reader about which cases the Court granted cert. in which the pool had recommended deny and there was no circuit split. . . .

Seventeen cases from OT 84 and eighteen cases from OT 85 fell into this category, and there are few high-profile cases on the list. Instead, somewhat predictably, the two types of cases with the largest representation are essentially factbound criminal and habeas cases, as well as employment law cases, including matters involving the interpretation of the Rehabilitation Act (Alexander v. Jennings, No. 83-727 and Bowen v. American Hospital Assoc. , No. 84-1529), the Civil Service Reform Act (Cornelius v. Nutt, No. 83-1673), and ERISA (Massachusetts Mutual Life Ins. Co. v. Russell, No. 84-9).

-- David Stras at SCOTUS Blog.

Commenting on the post Roger Friedman notes, in regard to a couple of these cases deemed particularly notable:

I think these two cases are good examples of reach-out by the bare conservative majority to quash libertarian strands of caselaw. Goldman was 5-4, Mechanik 5-3-1. Both were Rehnquist decisions in his spare ipse dixit style (q.v. Whren). Both decisions were criticized by O'Connor for want of standards (I suspect that if the true history becomes known, it will reveal that Burger:Blackmun::Rehnquist:O'Connor but not as extreme). It was this authoritarian streak, in contrast to the individual liberties approach of the Warren court era, that characterized the legal politics of the Nixon court (and which both Roberts and Alito have said many times over they were attracted to).

I had originally expected this comment to end up a practice pointer, in that about 10% of the docket constitutes reach-out cases, so as to constitute a worthwhile target for cert petitions. But it appears that you have to have a feel for where the majority wants to take doctrine and have an appropriate vehicle for doing so.

Thus, pinning down this 10% of the docket isn't easy.

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