The Circuit Splits Are Out There—and the Court Should Decide Them

The Supreme Court just isn’t as busy as it used to be. In the early 1980s, the Court decided more than 150 cases per year. In its 2014-2015 term, the Court decided 76 cases, continuing a trend that has long perplexed practitioners, commentators and scholars. On June 29, 2012, at the District of Columbia Circuit judicial conference, Chief Justice John Roberts responded to a question about the Court’s declining docket by stating that the Court could hear “100 cases without any stress or strain, but the cases just aren’t there.”

Is it true that the cases “just aren’t there”? In an essay published in the August issue of Engage, I provide a partial survey of consequential circuit splits that leave the rights of millions hanging in the balance—and which the Supreme Court has refused to resolve. The circuits are divided over whether the occupational speech of tour guides, consultants, therapists, and others who earn their living primarily through speaking is protected by the First Amendment; whether a statute that is rational when passed can be challenged as irrational at a later date if circumstances change; whether naked economic protectionism is constitutionally legitimate; and whether the Second Amendment guarantees the right to carry a handgun outside the home, among other constitutional questions.

These are not questions of interest only to constitutional law aficionados. Questions about whether naked wealth transfers merit more than a judicial rubber stamp or whether the price of pursuing a vocation is the abandonment of one’s right to speak freely are pressing and fundamental—and certainly worthy of the attention of a Court that (to hear the Chief Justice tell it) could easily hear some thirty additional cases. It is high time to subject the Court’s inaction to exacting scrutiny.