Government Shutdown of Supreme Court?

The most practical implication of Sen. McConnell’s announcement not to hold hearings on Judge Merrick Garland? The high court is accepting fewer cases for review than in the past. As reported by Lawrence Hurley (Reuters), in the past five years the Court docketed an average of eight cases from late February to early April, with a high of 11 in 2013. Since Justice Scalia died, only three new cases have been put on the Court’s calendar: a patent dispute and two criminal appeals. None is considered controversial. The Court is also engaging in very unusual behaviors to promote current litigants to settle disputes.

Short-term, it’s hard to say if this is good or bad—but it raises the possibility that the third branch of the U.S. government is in the early stages of a partial shutdown. That is the implication of the current trend of reducing the Court’s caseload by more than 50%. This is one way to reduce the footprint of the federal government. On the other hand, the impact will be the fragmentation of law, making the U.S. feel more like the EU in how the rule of law affects businesses and individuals.