Justice Neil M. Gorsuch, appearing at a judicial conference in Colorado Springs on Thursday, suggested attorneys who are troubled by the U.S. Supreme Court’s declining caseload should instead file more appeals.

Gorsuch provided introductory remarks at the biennial Bench & Bar Conference of the U.S. Court of Appeals for the 10th Circuit, which hears appeals in federal cases arising from Colorado and five neighboring states. Gorsuch, a 10th Circuit judge until his 2017 appointment to the Supreme Court by then-President Donald Trump, observed the justices received roughly 40% fewer petitions for review in recent years compared to 10 years prior.

“Maybe it had something to do with the pandemic and some lower courts were closed for long periods of time and perhaps there’s a backlog. Maybe it has something to do with appellate waivers in criminal cases. I don’t know,” he said. “Maybe it has something to do with the rise of technology, which makes it so much easier for all of us to know if there’s a circuit split.”

But, Gorsuch continued, “it does seem to me that if lawyers want our court to take more cases, perhaps they need to file more petitions.”

One set of scholars has attributed the Supreme Court’s shrunken docket to ideological divisions among justices. Another court expert has pointed to the justices investing significant time in deciding high-profile cases, to the exclusion of other matters.

This year alone, the Supreme Court has issued major decisions addressing whether states can disqualify insurrectionist presidential candidates, to what degree former presidents can be held criminally liable for their conduct, and the freedom executive agencies have to interpret federal law when crafting regulations.

Gorsuch also noted approximately 40% of Supreme Court rulings from this term were either unanimous or decided 8-1, with the conservative-majority court only issuing 6-3 decisions along established ideological lines 11% of the time.

“To my eyes, that’s not bad for a court that’s tasked with resolving some of the most difficult legal issues in the country,” he said.

Gorsuch dedicated the remainder of his remarks to recapping a selection of Supreme Court decisions from this term and paying tribute to former Justice Stephen G. Breyer, a Bill Clinton appointee who retired in 2022.

“I do know that Justice Breyer’s irrepressible love for the law, for the court and for our country left a mark and set an example for us all,” Gorsuch said.

Election law discussion

Following Gorsuch’s address, Judge Timothy M. Tymkovich of Colorado moderated a panel discussion about elections, legal challenges to voting procedures and the role of the courts in such disputes.

“We have a lot of doctrines that kind of constrain courts, particularly federal courts, from getting engaged in the electoral process until a very sharpened controversy has arisen. That means courts are often in a position — again, particularly federal courts — of not deciding cases until you have a direct election conflict in which the winner and the loser from the court decisions will be obvious,” said Richard H. Pildes, a professor of constitutional law at New York University.

“I think this is bad for the electoral process,” he added. “If we don’t get clarity in advance, I think it’s also very bad for the courts because it puts them in this position in which the disappointed losers from the decision almost inevitably are going to view the courts as having acted for partisan purposes.”

Tymkovich asked what should be done about “stray ballots floating around,” describing his experience receiving mail ballots for a relative who has not lived in Colorado in over a decade. 

“What do we do about that kind of issue?” he asked.

Pildes responded that states with up-to-date voter registration rolls are better positioned to prevent ballots from being improperly mailed, but the decentralized nature of elections complicates the process.

Judge Harris L Hartz of New Mexico asked about proper parameters for early voting. He said it “does extend the campaign season” and requires candidates to spend money farther in advance of Election Day.

“Would one-week early voting take care of that or where would you go?” he asked.

Early voting “makes voting more accessible and more convenient for some number of people,” responded Pildes. “It takes the pressure off of Election Day and off election administrators on Election Day.”

Finally, Tymkovich asked Derek T. Muller, a Notre Dame law professor, what “keeps you awake at night” in advance of the November election.

“The 2024 election is going to feel very different from 2020 simply because of COVID,” responded Muller, ticking through the voting changes states had to implement for public health reasons four years ago. “We have a much more known universe of things.”

The Bench & Bar Conference will continue through Saturday at The Broadmoor resort.