The Supreme Court has nearly unrestrained discretion to set its own agenda.
It could, if it wanted, grant review in only bankruptcy, patent, and tax cases.
Or it could focus on only Second Amendment challenges. Or it could choose to be a criminal court, summarily rejecting every petition for a writ of certiorari in a civil case.
In practice, the Court’s approach to docket selection is not so extreme. It is widely understood that the dominant standard for certiorari is conflict. The Supreme Court is most likely to grant review where there is a split in authority among, say, the federal courts of appeals.
This is because of a longstanding view that federal law should be uniform—that, for example, a federal statute should apply the same way in Kansas City, Kansas, as it does in Kansas City, Missouri.
Commentators dating to the nation’s founding have described the Court’s primary function as “to unite and assimilate the principles of national justice and the rules of national decisions.”
And many Justices, past and present, have also echoed this dominant rationale for review, often suggesting that the Court is duty-bound to establish a uniform federal law.
Indeed, some Justices have traced this obligation to a tacit trade between the Court and Congress, suggesting that the Court implicitly promised to ensure geographic uniformity in federal law in exchange for greater docket discretion.
But this account of the Court’s docket is underspecified. The Supreme Court’s docket encompasses more than just those cases presenting conflicts among state and federal appeals courts. In other cases, the Court considers (for example) whether to overturn its precedents, how to address new circumstances, or when to correct errors. In short, the Court grants certiorari in cases it deems sufficiently “important”—important for whatever reason—to merit review.
Here, the Court’s discretion is at its apex: It is under no duty (real or imagined) to hear these cases to ensure uniformity. Instead, the Court grants review in these cases for its own reasons—it is free to decide which precedents to revisit, which new circumstances to confront, and which errors to correct.
To the extent scholars and commentators have noted the Court’s grants in such cases of importance—i.e., cases not implicating the Court’s longstanding interest in uniformity—they have largely derided it as a standardless exercise of judicial power (or, worse, political power masquerading as judicial power).
Some such scholars have suggested that the Court’s standard for granting certiorari is not only hopelessly vague, but that it is intentionally so.
But, again, that’s not quite right. The Court’s decisions to grant review are not wholly standardless. Rather, scholars, practitioners, and commentators have sought these canons in the wrong places, and so they have remained largely obscured. Scholars have understandably looked primarily to the Supreme Court’s Rule 10 for guidance on the considerations governing “[r]eview on a writ of certiorari,”
especially given the view that there is a “shroud of intense secrecy surrounding the Court,” one that encompasses “the significant discretion Justices exercise over which cases they hear,” both in general and as to the certiorari process specifically.
In truth, however, the Court’s merits opinions offer some (frequently overlooked) suggestions regarding the reasons for granting review. We can thus turn to opinion text to perhaps better understand which sorts of cases present an “important question of federal law that has not been, but should be, settled by th[e] [Supreme] Court.”
Consider, for example, the Court’s seemingly odd decision to grant review in Allen v. Cooper, which asked whether North Carolina could be held liable for copyright damages, state sovereign immunity notwithstanding.
The Court’s decision to grant review seems unusual because it agreed to review a case that presented no circuit split and that faithfully applied the Court’s precedents.
Indeed, the Court’s decision to grant review in Allen appeared to puzzle some notable commentators.
So why did the Supreme Court grant Frederick Allen’s petition for certiorari?
The Court’s opinion in Allen suggests the reason. There, the Court wrote that it granted review “[b]ecause the Court of Appeals held a federal statute invalid” (namely, a federal statute purporting to abrogate the state’s immunity).
Where might a petitioner find this standard for granting review? The Supreme Court Rules—the rules established by the Court itself to govern Supreme Court practice and procedure—do not explicitly note a statute’s unconstitutionality as among the considerations governing review on certiorari.
But other cases do. In Iancu v. Brunetti, decided the year before, the Court explained that “when a lower court has invalidated a federal statute,” its “usual” course is to grant review.
Allen and Brunetti follow in a line of cases setting out this standard for granting review.
Such cases thus offer one example of the Court’s approach to certiorari in cases presenting potentially important—but splitless—questions. At one basic level, these cases suggest that the Court is likely to review cases holding a federal statute unconstitutional—such cases, that is, are sufficiently “important” to merit review.
This is so even when the statute’s fate seems a fait accompli, and even where there appears little for the Court to add over the judgment on review.
Moreover, these cases are only one example of a more generalizable certiorari-related phenomenon that is notable for at least three reasons.
First, as described, the Court’s opinions sometimes articulate a standard for certiorari that is not clearly set out anywhere else. Supreme Court Rule 10 offers some scant guidance regarding the considerations governing “[r]eview on a writ of certiorari,”
setting out what many observers already know: One, the Court is comparatively likely to grant review in cases presenting conflict; and two, it will also grant review in other “important” cases.
In short, the Court grants review to resolve splits and to address important questions.
The Court’s opinions can thus offer a clear(er) articulation of its certiorari canons, notwithstanding critiques decrying Rule 10’s standard for review as too vague.
Indeed, the understanding of the certiorari standard derived from Allen and Brunetti helps to explain the Court’s behavior in other cases. It surprised some commentators when, for example, the Court denied certiorari in Regents of the University of Minnesota v. LSI Corp., a case asking whether state entities enjoy immunity from certain proceedings at the Patent Office.
Allen and LSI Corp. raised related questions at the crossroads of intellectual property and sovereign immunity. But the Court’s emphasis on cases finding federal statutes unconstitutional helps to explain the Court’s decisions to review the former but not the latter, as the U.S. Court of Appeals for the Federal Circuit upheld the statutory scheme in LSI Corp.
Observers comparing these two cases—both about state sovereign immunity and intellectual property—might find the differential treatment inexplicable. But if the Court’s certiorari decisions are understood as motivated by a belief that only the Supreme Court ought to hold federal statutes unconstitutional—a belief held for whatever reason, such as comity among the branches or distrust for the appeals courts—rather than an interest in questions regarding state immunity and intellectual property, then the Court’s decisions seem more coherent.
Such coherence comes only through an analysis of the descriptions of the certiorari grants contained in the Court’s opinions.
Second, by setting out its certiorari standard in its opinions, the Court has both retained and exercised significant flexibility in shaping the contours of its important-questions docket over time. Allen, Brunetti, and other such cases not only offer a clear statement regarding one aspect of the Court’s current certiorari standard, they may also suggest an evolution in the Supreme Court’s docket-setting practice. To the extent these cases suggest that the Court will routinely review judgments striking down an act of Congress, such a rule may seem at odds with the congressionally prescribed scope of certiorari jurisdiction. Congress had once required the Court to review a variety of cases holding statutes unconstitutional.
But in 1976 and again in 1988, Congress moved such cases into the Court’s discretionary docket, suggesting that the Court need not always review such cases.
Indeed, legislative history suggests that Congress found automatic, mandatory review to both denigrate lower courts and prevent the Supreme Court from addressing more pressing matters.
But Allen and Brunetti, among other cases, hint that what might have been discretionary—what Congress preferred to be discretionary—is, in fact, to some degree automatic. Hence, the Court can deploy its discretion to shift the contours of its docket over time, even in ways that seem in tension with Congress’s preferences.
Third, though these cases offer a comparatively clear and relatively new rule for certiorari, we know little about that rule’s scope and foundation. Why has the Court claimed (incorrectly) to grant review automatically in practically any case holding a federal statute invalid (notwithstanding Congress’s possibly contrary preference)? And what sets Allen and Brunetti apart from those other decisions holding a statute invalid and yet evading Supreme Court review?
Neither case says. But while Allen and Brunetti alone do not elaborate on the rationale for this apparent shift in the Court’s certiorari practice, it is worth trying to bring greater coherence to the Court’s certiorari decisions through a more comprehensive analysis of the Court’s briefly stated reasons for granting review.
In short, an analysis of the Court’s opinions, describing its decision to grant review, may bring some coherence to our understanding of the institution’s certiorari discretion—that is, it may help identify the patterns and trends that define the Court’s docket.
But we should be clear that such coherence need not embed any reasoning—that is, it need not explain these patterns and changes over time. We may learn, for example, that the Court prefers to review judgments holding statutes unconstitutional, but we do not learn why.
How can we conduct such an analysis? Though Brunetti sets out a standard for certiorari that seems to inform the grant of review in Allen, neither cites the other, neither cites any other authority, and neither engages with changes in the scope of the Court’s congressionally delineated certiorari jurisdiction.
In short, the Court’s description of the standard for granting review eschews the most important content of traditional doctrinal development—for example, precedents, citations, and analysis—in favor of terse, citationless text.
The Court’s standard for certiorari in important cases thus seems to resist traditional doctrinal evaluation.
We can analyze the Court’s opinion text, briefly describing the reasons for granting review, as data.
Indeed, the Court’s description of a case’s procedural history nearly always notes the grant of certiorari, often (as in the examples above) including a brief description of the decision to grant review, thus giving rise to an opportunity to examine how the Court exercises its docket-setting discretion.
This Article undertakes such an analysis, drawing on the growing computational legal studies literature—which includes notable pieces examining the opinions of the Supreme Court—to examine how the Court exercises this discretion. Michael Livermore, Allen Riddell, and Daniel Rockmore, for example, have examined both federal appeals courts and Supreme Court opinions to discern the extent to which the Court’s docket (and its merits opinions) are distinct from the dockets and decisions of the federal courts of appeals.
In their study, they find “significant and meaningful” differences between the case topics selected for Supreme Court review vis-à-vis the topics at issue in the courts of appeals’ dockets, and they also find a “growing stylistic distinctiveness” in the Court’s opinions themselves.
Their work, moreover, “identif[ies] the topics that are correlated, either positively or negatively, with certiorari.”
In this project, I focus on those cases where the Court’s discretion is at its apex—namely, those cases that do not present a split but are decided solely because the Court deemed them important enough to decide—in order to better understand the Court’s important-questions docket in particular, and, by extension, the Court’s own priorities. To do so, I have built and analyzed a dataset of thousands of Supreme Court opinions in such important-questions cases specifically.
This descriptive analysis suggests several contributions to the literatures on certiorari, the Supreme Court, and data-driven analyses of legal materials. For one, the collective focus on Supreme Court Rule 10’s (unhelpful) text has obscured the importance of the Court’s own opinions in assessing its certiorari—and, indeed, its greater institutional—priorities.
We might, that is, learn a lot about the Supreme Court and its docket by simply looking to the Court’s own descriptions of its decisionmaking criteria. The Roberts Court, for example, seems to favor granting review in cases that invite the Court to overrule precedent (i.e., that include the terms overrule* and precedent*).
Moreover, this broad-based, data-driven approach also offers insight into the Court’s priorities at various moments in time. In short, this analysis not only helps us learn about certiorari; it helps us learn how priorities have changed over time. The term overrule*, for example, seems not only important to the Roberts Court, it also appears more important to the Roberts Court than any other Court (since Taft).
And the text-analysis approach employed here might also offer some general methodological insights for analyzing other terms that resist traditional doctrinal evaluation—a matter of growing importance to scholars and practitioners.
This Article proceeds in three parts. The first describes this data-driven approach to understanding the Court’s docket-setting priorities. Specifically, it begins with a brief description of the Court’s discretion to shape its docket, emphasizing the Court’s practices that have informed this project’s research design. It then describes this specific design.
The second Part presents the results of this analysis, focusing on two primary measures for terms appearing in the Court’s descriptions of its certiorari grants—an “Importance Score,” and changes in such scores over time (“Delta,” or Δ). The interpretation of these results identifies three factors driving many of the shifts in the Court’s priorities over time, complicating the received wisdom that it is “temeritous”
to attempt to clarify the Court’s “vague”
certiorari standard. One, large exogenous events, such as wars or depressions, can have important effects on the Court’s docket. Such effects are, upon reflection, expected: Eras of sustained economic hardship, for example, give rise to bankruptcy cases that require final resolution.
Two, significant political developments, such as landmark legislation, can also drive the Court’s docket.
Statutes aimed squarely at the Supreme Court or the judiciary can obviously have such an effect: When, for example, Congress moved vast categories of cases implicating the constitutionality of federal statutes out of the Court’s mandatory docket, questions of constitutional interpretation occupied an even more significant part of the Court’s discretionary docket.
And other notable actions by the political branches—passage, say, of major reforms to the patent statutes—can raise “important question[s] of federal law that ha[ve] not been, but should be, settled by th[e] Court.”
Three, the Court’s important-questions docket seems to have become more volatile in recent years, with new confirmations to the Court seeming to have an especially important effect on changes to the Court’s docket.
This outcome is especially noteworthy: It may seem controversial that the Court’s interpretation and application of a longstanding rule of procedure—Supreme Court Rule 10—shifts more now, and especially when a new Justice is confirmed to the Court (as compared to other times).
In view of this noteworthy outcome, the third Part considers possible reforms to the Court’s certiorari practice and, more specifically, argues that the Court requires a more robust doctrine of certiorari. The Court needs to better explain its approach to certiorari so that the public and the political branches can better assess it. This Article is not, to be sure, the first to advocate for greater transparency in the Court’s certiorari practices.
But as Congress and the executive branch consider reforms to the judiciary—and to the Supreme Court in particular—to temper its seeming political character,
it is ever more important for the Court to engage in this interbranch dialogue over the appropriate scope of the Court’s docket. Doing so may help both to protect the Court’s legitimacy and to ensure that any reforms to the Court’s docket—for example, limiting the Court’s jurisdiction or expanding its mandatory docket—respond to a more accurate and complete account of the Court’s docket-setting canons.