What, Precisely, Is or Should Be the Role of the Modern Supreme Court?
Begin with the fact that one cannot meaningfully discuss how many cases the Supreme Court should take unless one has a conception of what the Court, as an institution, should be doing in the first place. Is it (primarily) to provide a “uniform” national law and, therefore, to resolve circuit splits so that a federal statute (or, for that matter, the Constitution) does not mean one thing in one part of the country and something quite different elsewhere? This was, after all, the justification given by Justice Story almost two-hundred years ago for the Court’s being able to review decisions of state courts. He emphasized “the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution.” The absence of a national “revising authority” would generate presumably intolerable “public mischiefs” inasmuch as “the laws, the treaties, and the constitution of the United States would be different in different
