A recent piece by Amanda Frost at Slate caught my eye with its suggestion that the United States Supreme Court should not take its traditional summer recess running from the end of June to early October. That recess is part of the Supreme Court’s DNA, so, on grounds of tradition alone, there is good reason to place the burden of proof on Frost to show that the situation does not work.
I don’t think that this burden can be discharged by showing (as Frost does) that during the early 1970s several issues required prompt action by the Justices, which might have been hampered by the longish vacation. Surely some more modest adjustment should be able to deal with those issues today, such as a Skype conference if necessary.
Nor do I think that the break becomes galling because the caseload of the Supreme Court is down to 80 per year. For one thing, the number of cases does not give any real indication of the importance of cases on the docket. The decision in NFIB v. Sebelius on the constitutionality of the health care act surely took up a lot of time. Filling the Court’s docket with cases of marginal importance does not seem to make sense, regardless of whether we keep to the present calendar or hope that the Court will hear more cases. I am not aware of dozens of cases that cry out for review, even though there are many areas for which one or two well-chosen decisions from the high court could help. But here too interstitial adjustments should work.
The real issues with the Supreme Court have to do with how it approaches constitutional law, not with the number of cases that it takes. Rethinking its generally deferential approach to economic regulation and the administrative state is the top item on my list, and that can be done within the current structure -- and without these changes. We should not allow small institutional issues to distract from the larger questions. How well does the Court perform in the cases it decides and how should its members be selected? That is where the real debate lies.