Add this to the ways in which the Supreme Court increasingly resembles another political institution: Only one side of the ideological divide has the power to set the institution’s agenda.

This is a little recognized, but very significant, feature of the current 6-3 alignment of judges. Under long-standing tradition, it takes four votes to place a case on the court’s docket, the so-called rule of four. Not five, mind you, not a majority. But it takes four. And the Democratic nominees now seem to find themselves one vote away in case after case.

Why is this important? Because the rule of law requires the court to do more than simply adhere to precedent when deciding cases. It also requires the court to rebuke lower courts when they refuse to follow Supreme Court decisions. If not, those verdicts are in danger of becoming dead letters, precedents that lose their force without being overturned.

Since the 1980s, the court has had almost entirely discretionary jurisdiction. It almost never have to hear cases. It is almost always a choice whether to allow a lower federal court or a state supreme court to have the final say on a dispute. The court does not have to give reasons for granting or denying review or even reveal its votes on whether to do so.

But for the past two generations, the rule of four seems to have worked pretty well. Even though the court has consistently had a conservative majority, there is also a permanent group of four of the nine justices who have been able to force cases — and, in doing so, issues — onto the docket. Sometimes the problems were big. Think, perhaps, of the case of Obergefell v. Hodges and the right of same-sex couples to marry. More often, the cases were relatively low-profile – lower court decisions refusing, for example, to apply civil rights protections that were already established.

In any case, the outnumbered liberal wing of the court had enough votes to force the court to expend its resources to hear and decide cases. And here’s the thing: In many of those cases, the court ultimately overturned by an overwhelming vote. The lower court decisions were indefensible.

But for the court to reverse a lower court’s decision refusing to honor civil liberties, the case must first be placed on its docket. And that no longer seems to happen in cases involving established rights favored by the liberal wing of the court.

Take two striking examples of cases the court recently declined to set for argument in the term beginning in October.

In Brown v. Louisiana, the court allowed a conviction in a capital case to stand against the petitioner, David Brown, even though he provided evidence that the prosecution suppressed the statement of an accomplice corroborating Mr. Brown that he was only a minor participant in the crime. (I was one of the lawyers representing Mr. Brown.) Seven years earlier, the Supreme Court had punished the Louisiana courts for allowing just such an unconstitutional game. But now, faced with open defiance of its previous ruling, the court could muster only three of the four votes needed to grant review. All that Judge Ketanji Brown Jackson could do, in a disagreement joined by justices Sonia Sotomayor and Elena Kagan, was warned that the court’s decision not to accept the appeal “should in no way be interpreted as an endorsement of the legal reasoning of the lower court.”

In another case, the court did not want to take up a case from Mississippi involving a claim that prosecutors prevented potential jurors from serving based on their race. Four years ago, the court issued a sharp rebuke of this discriminatory practice. Yet last month, faced with another clear record from the same state of such unconstitutional discrimination, the court again found itself with only its three Democratic appointees set to hear the case next term. The court, Judge Sotomayor lamented in a dissent joined by justices Jackson and Kagan, was unwilling to take even a “modest step to preserve the force of its recent precedent.”

It could be argued that the inability of the Democratic appointees alone to put cases on the docket of the court is not a great cause for concern. When a Republican is in the White House, the Democrats lack any executive power. And vice versa when a Democrat is in office. When Congress is in the hands of one political party or the other, the minority party is generally sidelined as well.

But in those situations, an election is never more than a few years away. If the public wants a president or Congress to turn its attention to different issues, it can vote new officials into office.

Not so with the Supreme Court. We may have the current 6-3 lineup for the next decade, maybe longer. Will we never have cases during this time in which the court reverses lower courts for failing to follow past progressive decisions?

There is certainly a place in the courthouse for such cases. In the term that just ended, the court heard and decided only 60 cases – more than a dozen less than the average over the past few years.

In fact, if the court continues to block attempts by Democratic appointees to place cases on the court’s docket, Congress might even consider intervening. The rule of four is not enshrined in the Constitution or even in any legal rule or regulation. It is simply an unwritten tradition. Congress, which has the power to regulate the court’s jurisdiction and procedures, could say that only three votes are needed to hear a case.

How people choose to spend their time is an expression of their values. So also with the Supreme Court. It’s time to pay more attention to what cases the court puts on its docket, not just how the court decides the cases it hears.

Jeffrey L. Fisher is a professor at Stanford Law School, where he co-directs the Supreme Court Litigation Clinic.

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