By Stacey Patton

The Supreme Court’s function is to solve important questions of the law by resolving cases and controversies. So what happens when it decides to hear fewer cases? And what happens when the Court hears even fewer cases on civil rights claims?

A small cadre of the Court’s watchers and critics gathered Friday at the National Press Club in Northwest Washington, DC, for a half-day symposium where they grappled with these questions. The symposium, put together by Yale Law School, invited judges, attorneys, legal scholars and students to assess whether the process by which the Court decides to hear certain kinds of cases is in need of fixing. Among the panelists were the NAACP Legal Defense and Educational Fund Inc.’s (LDF) assistant counsel Josh Civin and former president and director-counsel Theodore M. Shaw, who both discussed the implications for civil rights litigation.

It used to be that the Court was duty-bound to hear the lion’s share of the cases brought before it. But due to the abandonment of a mandatory review during the 1980s, the Court now exercises broad discretion as to what kind of cases it will hear. The docket has shrunk down to about 80 cases per term, from around 130 during the 1980s.

The dwindling docket continues to be a topic of controversy, as the number of cases the Court has taken is about half what it was 20 years ago, when it began its dramatic decline.

Why are the numbers down? What is there about the case-selection process that has changed – if anything? Is the Court now simply confronted with fewer cases worthy of its review? Has the Court tightened its standards for accepting cases to review? What impact, if any, does this shrinkage have for lawyers and civil rights advocates who challenge wrongs against African Americans and other minorities?

No single answer explained the dip in the docket. Nor was there consensus among the nearly two dozen panelists on whether the Court’s selection process is broken. Some of the panelists agreed that the issue is not about the actual number of cases being heard. Others asserted that the cases that the Court is working on seem far removed from hot-button issues that most Americans are concerned about: jobs, healthcare, immigration and two wars, all of which dominate public life.

During its most recent term, the Court heard cases on terrorism, broadcast indecency regulations, the ability to sue pharmaceutical and tobacco companies, a post-conviction right to DNA evidence, a challenge to the Voting Rights Act, strip-searching schoolchildren, and a reverse racial discrimination case involving white firefighters from New Haven. Some point to this docket and argue that it can hardly be argued that the Court’s docket is devoid of important issues.

LDF’s Josh Civin argued that the Court has heard too many cases in recent years where it has reached out to overturn long-settled precedents. For instance, two years ago, in a 5-4 decision, the Court struck down voluntary integration policies in public schools that sought to avoid the harms of racial isolation and promote racial diversity.

“The Supreme Court has also created all sorts of new obstacles to bringing civil rights cases,” said Civin. He cited the Court’s use of new restrictions like “standing,” which has placed limits on the kind of plaintiff that can bring a case before the Court. “As a consequence, it’s no surprise that the numbers of cases related to civil rights are dwindling,” said Civin.

“The Court’s prior decisions have also made it more difficult for civil rights advocates to challenge wrongs that affect African Americans and other minorities,” Civin said. As a result, Civin maintained, blacks and other minorities who are still politically vulnerable and warrant continued protection of the law are being jeopardized.

A bench stacked with more conservative justices may also be part of the decline in cases being heard by the Court. “For civil rights groups, we need to be cautious about putting our cases before a court that has an increased tendency to be unfriendly to civil rights claims,” said Civin.

Theodore Shaw echoed Civin’s assessment of the shrinking docket by reflecting on his tenure at LDF, and pointing to a period when LDF had multiple cases being heard by the Court every term.

“When I first came to the Legal Defense Fund, we used to boast that we had more cases in the United States Supreme Court than any other institution with the exception of the Solicitor General’s office,” said Shaw.

Shaw said that change began in the Eighties when the Court changed. “We’ve been avoiding bringing cases over the years because the Court is so conservative and hostile. There is a concern that we might get bad results.”

Shaw agreed that there is no one reason why the Court has been taking fewer cases. “It’s not a question of the Court being lazy. It’s not a question of whether the Court hears 150 cases versus 80 cases. Particularly for those of us practicing civil rights litigation, it’s about whether the Court is going to be open to hearing civil rights cases in a way that is fair.”

The kind of civil rights cases that the Court has been hearing in recent years have been claims about reverse discrimination cases, said Shaw. He argued that civil rights as we understand it and support it are being attacked.

“The posture in those cases is that a white person is suing a college or university or corporation pursuing diversity,” said Shaw. “So now we find ourselves on the defensive side, even though black and brown folk’s interests are probably most at issue.”

Shaw said that, in such cases, the Supreme Court should be willing to permit advocates for minority interests to intervene and participate in oral arguments and ensure that those distinctive voices are heard.

Stacey Patton is a Senior Editor and Writer for the NAACP Legal Defense and Educational Fund, Inc.