Ten years from now, what kinds of issues of interest to politics will dominate the agenda of the United States Supreme Court? Will a dominant approach to constitutional interpretation emerge to guide the justices in their handling of these significant cases?

Factors affecting the immediate agenda of the U.S. Supreme Court operate within the context of the Court's constitutional and statutory jurisdiction. By statute, Congress eliminated most mandatory appeals, leaving the Court with an almost entirely discretionary jurisdiction since the early twentieth century. The justices hear the cases that they want to hear.

In recent years, that has meant that the justices have heard relatively few cases. While the docket of cases filed in the Supreme Court has grown dramatically over time, paupers' petitions account for much of that volume, and the Court is unlikely to take these cases from prisoners and other unrepresented individuals. The paid docket of cases filed by attorneys on behalf of clients is only about a quarter of the total and has been more stable. While the Court regularly heard upwards of 150 cases per term through the mid-1980s, over the past two decades the number of cases heard by the Court per year has dwindled to fewer than 80, about one percent of the cases placed on the docket.

With their discretionary jurisdiction, the justices have shown a distinct preference for certain types of cases. While cases involving ordinary business litigation, taxation, and regulation once dominated the Court's agenda, they now absorb little of the justices' attention. The modern Supreme Court has instead given most of its attention to the sexy cases involving civil rights and civil liberties, with some secondary coverage of cases involving federalism or judicial power.¹

Even within these broad contours, the Rehnquist Court has shown a distinct preference for reserving its calendar for the most important cases in which the Court can set significant precedent with a single intervention. Everything else has been brushed off the agenda.²

Three factors affect the Court's agenda: the political environment, the activity of potential litigants, and the interests of the judges. The political environment affects the Court most directly by raising some issues onto the broader public agenda, while putting the laws in place that the judiciary must interpret, apply, and possibly lay aside. Congress can effectively force some issues onto the Court's calendar through specific jurisdictional grants. The Bipartisan Campaign Reform Act of 2002, for example, included provisions for its expedited judicial review by the Supreme Court. Parties and politicians can also help shape the Court's agenda by raising the salience of some issues, as the Republicans have done with federalism since the 1980s.³

State and federal governments can keep an issue on the Court's agenda by challenging the settlement the justices have tried to impose, as they have done with abortion.⁴ They can also hasten its departure from the Court's agenda by rapidly complying with the dictates of the justices, as they did on the constitutionality of sex discrimination.⁵

The litigation environment can also affect the Court's agenda. The justices may have been ready and even eager to pluck Clarence Earl Gideon's 1962 pauper's petition out of the pile so as to issue a ruling on the obligation of states to provide lawyers for indigent criminal defendants, but they often require more assistance than that. Through the nineteenth and much of the early twentieth century, there was no organized support for litigation involving modern civil rights and civil liberties, and as a consequence these issues came before the justices rarely. When they did, they were often thinly developed and idiosyncratic. Only in the second half of the twentieth century has a bar developed with sufficient resources, organization, and expertise to routinely bring before the justices the full range of civil rights and liberties issues that might be of interest to them.⁶

It took even longer for ideologically oriented litigators to replace businesses in developing and presenting cases raising conservative issues before the Court. Organized interests and experienced litigators can improve the quality of a case so that it presents issues in the most favorable light for getting on the Court's agenda while also signaling to the justices which cases are important enough to merit their consideration.⁷

Finally, of course, the justices themselves play an important role in setting their own agenda. Within the small class of highly salient cases, individual justices bring their own particular interests to bear. The Warren Court, under the leadership of a former prosecutor, encouraged a growth of criminal justice cases, and many of the justices on the Burger and Rehnquist Court were equally concerned to hear such cases in order to undo some of the consequences of the Warren Court's decisions. The Rehnquist Court, which includes at least two members with particularly strong concern for the limits of federal power vis-à-vis the states, has shown more interest in that area than has any Court since the New Deal. The Court has internally adopted a “Rule of Four,” by which they will take up any case that four justices want to hear. In practice, the justices are strategic in selecting among the petitions on the docket to schedule cases for argument primarily when a majority of at least five justices is prepared to establish new doctrine.

What does all this mean for the next decade? Most likely, it means more of the same. The replacement of some of the existing justices will undoubtedly allow new majorities to form and bring some new interests into the judicial conference room, but there is little reason to think that a reconfigured Court will radically alter the judicial agenda. The justices will likely retain a preference for dealing with a few, big-ticket cases each year. At the same time, the logjam in the Senate and the “chastened aspirations” of the broader intellectual climate are likely to mean that a reconstituted Court will not strike off in bold new directions.⁸

Some issues are perennials on the Court and will likely remain important in the coming years. Criminal justice and religious liberty have received regular attention from the justices since the 1960s, and it would not be surprising if they received even more attention in ten years. Both are complicated issues with many facets, subject to a fair amount of disagreement among the justices (making the issues hard to settle), and politically salient (creating new permutations for judicial consideration). The traditional constitutional concerns associated with the “wars” on crime and drugs will likely be supplemented by a related set of concerns arising from the war on terror and domestic efforts to ensure “homeland security.” The Rehnquist Court has reached something of an equilibrium on religious liberty issues, but the replacement of several justices will likely result in a desire to revisit some of those issues. At the same time, resurgent political and legislative interest in religion and issues intersecting religion (such as the faith-based initiatives and school choice programs), aided by a maturing group of public-interest law organizations sympathetic to religious conservatives, will prod the Court to revisit the subject.

Other issues are unlikely to receive sustained attention from the Court. The current majority seems to have run as far as it is willing to go on federalism, and the Court will need to take a fresh approach to the issue if it is to make further progress. Despite recent hype of a putative “Constitution in Exile” movement dedicated to slashing government power and ratcheting up protections for property rights, there is little reason to think that such goals will find favor with any likely majority of the Court in the next decade.⁹

A majority of the justices may well offer constitutional protection to gay marriage, perhaps in as soon as ten years, but the issue is unlikely to “dominate the agenda” of the Court—a onetime intervention will probably suffice. While war powers and immigration raise important constitutional issues and will continue to be highly relevant in coming years, the Court has traditionally been reluctant to get involved in those areas.

As for whether a dominant approach to constitutional interpretation will emerge on the Court, it seems very unlikely. Most justices and lawyers are interpretive pluralists, using a variety of constitutional arguments. Text, history, precedent, purpose, and public values are all available to the justices and routinely deployed in opinions. There was no dominant approach to constitutional interpretation on the Court or in academia through most of the twentieth century, and there are no signs that a consensus is forming now (at least not around anything that would provide any significant degree of determinacy). Not only are there the obvious differences in approach between conservatives and liberals, but there are also deep divisions among conservatives and among liberals over how best to go about the specific tasks associated with constitutional interpretation. The politics associated with judicial nominations and confirmations further reduce the probability that any single approach to constitutional interpretation will come to dominate the Court.