The Supreme Court has long been criticized for poorly patrolling its lower courts for circuit splits. At least recently, the Supreme Court has issued relatively few summary judgements and summary reversals to clarify its recent decisions before they grow out of hand.

The Court today did just that when they summarily reversed a decision of the Eight Circuit that, in my opinion, followed their precedent very closely. Three Circuits ,US v. Russell in the First Circuit, US v. Gunter in the Third Circuit, and now the Second Circuit today, have struck down categorical approaches used by lower courts in an attempt at following the Kimbrough opinion.

Importantly though, Justice Roberts argued that – right or wrong interpretation – the Supreme Court should let the opinion ferment in the lower courts before making a decision on the case. “As has been said,” the Chief Justice wrote, “a plant cannot grow if you constantly yank it out of the ground to see if the roots are healthy.” That view was joined only by Justice Alito and it comes as a bit of a surprise.

During his confirmation hearings, Chief Justice Roberts suggested that the court could hear even more cases than it hears presently:

LEAHY: You wrote a memo regarding — in fact, in ’83, to the White House lawyer — you wrote a memo regarding proposals by then Chief Justice Warren Burger to reduce the Supreme Court’s case load. In that memo you volunteered the following: If the justices truly think they’re overlooked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the good faith standard and advocating the role of fourth or fifth guesser in death-penalty cases would eliminate about a half dozen argued cases from the court’s docket each term. Are you saying that judges are just too busy to pay attention to death cases?

ROBERTS: No, Senator.

LEAHY: What are you saying. How do you feel today? That was ’83. How do you feel now, 22 years later?

ROBERTS: Well, in ’83, of course, they were hearing about 150 case as year. They hear about half that now. Again, I don’t want to prejudge questions or even be presumptuous to look down the road, but it seems to me that there’s the capability there to hear more cases today, not fewer. And I’m sure there are reasons for the reduction in the case load that I’m not familiar with that I might become more familiar with, but they handled twice as many cases 20 years ago than they do today, and I think the capability to address more issues is there in the court.

Since then, though, the Chief Justice has recanted his views a bit. In February 2007, the Washington Post reported on a trip Roberts took to Northwestern University, where he said blamed the lack of bold legislation as the reason for the Courts docketing blunder in OT 2006 (the Court hadn’t accepted enough cases in the first months and therefore had to hear a heavy load in April, significantly delaying the release of opinions.)

I think it will be interesting to see if the Court continues to sweep up circuit splits with frequency. Only two Justices, the Chief Justice and Justice Alito, felt that the case should be allowed to grow in the circuits, even if that growth was out of step with the opinions of 6 members of the court that made the original opinion.

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