In a post over at Concurring Opinions, Nate Oman writes:
I recently had a conversation with an acquaintance about the predicament of con law scholars. He made the point that the decline in the Supreme Court’s docket has had a big impact on con law scholarship. It used to be the case, he said, that the Court was churning out enough new decisions that con law professors could keep busy working out doctrinal puzzles and fitting the new cases into their vision of the fabric of constitutional law. With fewer cases to work on, however, con law professor have to find something else to do.
I’ll disagree with Nate’s acquaintance about one thing: I don’t think that the cause of this dynamic is the size of the Supreme Court’s docket. The Supreme Court can make a lot of changes to the law in just a handful of decisions. They don’t need lots of cases to do that.
At the same time, Nate’s acquaintance is on to something important that is often overlooked these days in debates on the role of the Supreme Court. Relative to most periods, the last few years have been a pretty boring period for the Supreme Court. Now before everyone jumps at this, please note the important caveat: relative to most periods. I’m making a relative statement, not an absolute one, and I suppose I’m implicitly limiting it to the period of the modern Supreme Court of the post-WWII era. True, there is lots of fear or hope that the law will change dramatically in the future, and the Supreme Court’s cases fiddle with the law here and there, but relative to other periods this is a time of considerable stability in existing public law doctrine.
I was thinking of this recently when I read the first edition of the criminal procedure text I recently joined. The first edition of Kamisar & Hall’s Modern Criminal Procedure — as of this summer, it’s Kamisar, LaFave, Israel, King & (gulp) Kerr, but back then it was just Kamisar & Hall — came out in 1965. I recently purchased a copy of it, both because I was interested in the evolution of this book in particular and because recently I’ve been reading a lot about the history of criminal proceudre.
The 1965 edition of the Kamisar casebook is truly remarkable. It’s hard to overstate how uncertain the law was at the time. The Supreme Court was in the midst of ditching many of the centuries-old doctrines of criminal procedure and replacing it with new doctrines. As a result, reading the casebook is something like reading a movie review written by someone who just watched half a movie, was forced to leave, and immediately had to write a review sumarizing the first half and offering lots of speculation about what might happen in the second half of the movie. (Incidentally, I gather this state of flux explains the somewhat odd title of the book: it’s “modern” criminal procedure because it’s about the new set of decisions that were being handed down.)
I plan to blog more in-depth about this at some point soon, because it’s a really interesting story, but think of the difficulties of trying to write a criminal procedure casebook in the summer of 1965. Most of the major topics in criminal procedure had been upended by 5-4 decisions within the last five years. In the Fourth Amendment chapter, Mapp v. Ohio was one of your older precedents: that 5-4 decision had been around for a full four years. For your Fifth Amendment chapter, the Court had just applied the Fifth Amendment to the states one year ago by another 5-4 vote in Malloy v. Hogan. Your material on confessions would feature the 5-4 decision in Escobedo v. Illinois, which was a year old. Finally, your Sixth Amendment chapter had to be based heavily on Gideon v. Wainright, which had been around for two years (although it was a relative rock in the doctrine, being unanimous as to the result).
Plus, the Court’s decisions were strongly hinting at even more dramatic changes ahead. You could look at the tea leaves and recognize that some big changes were coming to the law of confessions, searches, and stops and frisks. Indeed, the Court was about to decide three of the basic building blocks of today’s criminal procedure doctrine: Miranda v. Arizona (still a year away), Katz v. United States (two years away), and Terry v. Ohio (three years away).
Criminal procedure is just one area, but I think it provides an interesting lens to see the rest of the Court’s docket. These days, even most of the “big” Supreme Court cases are on relatively narrow topics. So I wouldn’t be surprised, going back to Nate’s post, if con law scholars are kind of bored these days. Relative to other eras, not that much is happening.
That’s my impression, at least. Am I mistaken? I look forward to your comments.
UPDATE: I should also point out that the Court’s small docket is in fact related to the relative stability of existing law. It’s not the cause of the stability, but it is another result of it. The current Court is very heavily focused on resolving circuit splits, and that leads to fewer grants and decisions that are more likely to be interstitial than we might see otherwise.