In an article about the Supreme Court’s docket of cases pending for its new term, New York Times’ reporter Adam Liptak quotes Justice Anthony Kennedy on the reasons why the Court’s docket is more heavily oriented towards criminal and First Amendment cases. Speaking to reporters at a judicial conference in August, Justice Kennedy stated, “The docket seems to be changing. … A lot of big civil cases are going to arbitration. I don’t see as many of the big civil cases.”

I had not yet heard a Supreme Court Justice blame arbitration on its dearth of commercial cases on its docket. Could it be that the proliferation of commercial arbitration has impacted the kinds of cases that reach our highest Court? If so, then the concerns of scholars who critique arbitration for its lack of precedent and privatization of law should be taken more seriously. If Justice Kennedy’s observations are confirmed by some sort of empirical data, then this largely theoretical objection to arbitration becomes an actual collateral consequence to arbitration’s growth. Or is there some other explanation for the lack of large civil cases on the Court’s docket?