Are Petitions for Certiorari Declining?

October Term 2022 saw a significant drop in the number of paid petitions for certiorari. Is it a trend?

There were only 1,252 paid petitions for certiorari filed with the Supreme Court in October Term 2022. This is well below the average number submitted during the prior five-year and ten-year periods (1,645.8 and 1593.8 respectively), as Michael Migiel-Schwartz notes in an interesting SCOTUSBlog post. Is this a trend?

Migiel-Schwartz writes:

This year's decline is substantial: a 21.2 percent decrease from the previous 15-year average, and a 23.9 percent decrease from the previous five-year average. Even compared with the 2019-20 term's 1,478 petitions, it marks a more than 15 percent decrease. . . .

It is difficult to draw meaningful conclusions based on these numbers alone, and it is possible that the 2022-23 term is a one-year blip. The downturn does not seem to be the result of declining merits decisions in the federal courts of appeals. Although they too have decreased in recent years, that decrease has been slow and fairly steady from 2012 through 2023 — not the sudden drop seen this year in the Supreme Court's paid docket.

Whatever the cause of this term's decline, the average of 1,589 is consistent with a longer-term trend downward noted in 2007 by David Stras. "Throughout the 1980s and early 1990s, the number of paid petitions filed with the Court ranged from 1,986 petitions in 1990 to 2,417 petitions in 1981," Stras wrote. "However, beginning in 1994, or at about the time of greatest decline in the Court's plenary docket, the number of paid petitions began to plummet, with only 1,693 paid petitions filed during October Term 2004, a nearly 22% decrease since 1994."

It will be interesting to see whether the precipitous drop in petitions filed last term is a temporary blip, to which Covid-19 may have contributed, or is part of a larger trend. Among other things, the change in the Supreme Court's composition could be altering the calculus for potential filers, but it is not clear why this would produce an overall decline in cert petitions, as opposed to a shift in what sorts of petitions are filed. (That is, if there are fewer opportunities for progressive interests it would seem these could be offset by increased opportunities for conservative interests.)

The longer term drop in paid petitions for certiorari is significant, but is far less than the decline in the size of the Court's merits docket. So while the decline in petitions could contribute to the shrunken merits docket, it does not appear to be the driver. The Court is hearing fewer cases than it used to because it is choosing to hear fewer cases. So unless the justices decide to start hearing more cases, or Congress intervenes, we are likely stuck with a smaller Supreme Court docket, whether or not paid petitions for certiorari decline.