Congress’s decision to give the Supreme Court vast power to select cases remains one of the most consequential decisions of the twentieth century. That power—implemented through the writ of certiorari—allows the Court to dodge cases it does not want to decide. Not only is certiorari the primary way the Court exercises the famous passive virtues,
it was a necessary precondition for the expansion of individual, constitutional rights.
But the Court does not simply use certiorari to choose its cases; it also uses the writ to select its questions.
Indeed, it is far more accurate to say the Court takes and decides questions than to say it picks and judges cases.
The Court most obviously exercises its question-selection power by adding questions to or subtracting them from a case. For example, when the Court extended First Amendment protections to corporations’ political speech in Citizens United, it did so by adding its own question that nobody had asked.
By contrast, in Shapiro v. Thompson, the Court simply ignored the question of whether the Eleventh Amendment barred retroactive relief and affirmed the judgment below ordering payment.
When the Court examined the question five years later in Edelman v. Jordan, it had to sheepishly admit that it had fouled up earlier cases because it had not been paying attention to all of the questions included in the case.
These cases are striking because the question-targeting decision directly affected prominent constitutional holdings, but the practice is extensive and present in many landmark cases, like Carolene Products,
Gideon v. Wainwright,
and Furman v. Georgia,
as well as in recent cases dealing with same-sex marriage,
the recognition of Jerusalem as a part of Israel,
and whether the Deferred Action for Parents of Americans (DAPA) program violated the Take Care Clause,
Even when the Court does not narrow or add questions explicitly, it is still only considering questions. Its rules are quite clear on this point: “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.”
From where did this question-selection power come?
One potential answer is the Article III judicial power itself. That is, perhaps the power to limit review to prespecified questions is incidental to the Court’s appellate powers over cases and controversies generally or the common law writ of certiorari in particular.
A second answer would stress Congress’s Article III power over the Court’s appellate jurisdiction. This approach would locate the source of the power in a series of statutes that expanded the Court’s statutory certiorari jurisdiction in response to an overcrowded Supreme Court docket. Neither of these answers is entirely persuasive in light of the history uncovered below.
The former explanation struggles to deal with the relevant procedural and intellectual history. Originally, the Court exercised its appellate jurisdiction through two common law devices: the writ of error and the appeal.
Neither device allowed Justices to limit review to preselected questions. The main difference between them was that appeals required review of facts as well as law.
Review on either method was mandatory (the Court was required to review the case if the petitioner satisfied procedural requirements), limited to the record, and comprehensive (Justices had to review the entire record).
Nor can the common law writ of certiorari provide historical support. The Court did not use the common law writ to take a case until the late nineteenth century.
And when it eventually did begin to use the writ, it took the case and then proceeded as if acting on a writ of error or appeal.
The judicial power explanation also runs aground upon Chief Justice John Marshall’s famed statement in Cohens v. Virginia: “[W]ith whatever difficulties, a case may be attended, we must decide it . . . . [The Court has] no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.”
Marshall’s next lines are particularly relevant: “Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.”
This makes it difficult to understand question-selection as a lesser included power of case selection. Per Chief Justice Marshall, the power to answer questions is not a lesser power than deciding questions.
Rather, the ability to authoritatively answer questions is derivative of the obligation to render judgment in a case.
It follows then that, if the Court is not deciding a case, it lacks the power to answer questions. Thus, even if certiorari gives the Court power to choose which cases to decide, it is the deciding of the case that provides the power to answer a question, not certiorari discretion itself.
The second possible explanation is that Congress exercised its Article III power over the Court’s appellate jurisdiction to empower the Court to target particular questions, not just select cases. It is true that Congress empowered the Court with certiorari powers through the Evarts Act in 1891.
Still, Congress explicitly linked certiorari to the appeal and writ of error by requiring that, once the Court granted certiorari, it must then proceed “with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.”
Writing about this newly created certiorari power, the Court averred that, “[f]rom the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error . . . [has] been . . . to have the whole case and every matter in controversy in it decided in a single appeal”
and further noted that “a case cannot be brought to this court in fragments.”
The Evarts Act also gave circuit courts the ability to certify individual questions of law to the Supreme Court
—just as federal courts certify questions of state law to state supreme courts.
Thus, Congress explicitly provided for review of questions but not through certiorari. It linked review of questions to certification. In contrast, it tied certiorari to cases.
If question selection did not arise through statute or common law tradition, where did it come from? In 1925, Congress greatly expanded the Court’s certiorari jurisdiction through the Judges’ Bill.
Testifying in favor of the bill, the Justices repeatedly promised that certiorari review encompassed the entire case.
Despite their promises, the Justices, on their own initiative, soon eradicated the traditional strictures on appellate review.
The doctrine of constitutional avoidance is also relevant here. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring) (“When the validity of an act of the Congress is drawn in question . . . it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))). What is commonly thought to be a doctrine that restrains the Court from overreach is often instead a tool for judicial lawmaking. See Neal Kumar Katyal & Thomas P. Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change, 128 Harv. L. Rev. 2109, 2118–23 (2015) (suggesting the Court uses avoidance as an excuse to radically reinterpret statutes).
First, they abandoned comprehensive review of the record in favor of limited review of the questions specified by the parties.
Later, they began to write their own questions, even questions nobody had asked or questions that were no longer part of the case.
Today, the limited and comprehensive review mandated by Congress—and promised by the Justices when they lobbied for expanded discretion
—is no more. While the statute still says that the Court should review cases on certiorari, by rule, the Court only considers a preselected subset of questions.
The Evarts Act, the Judges’ Bill, and several other legislative efforts to expand the scope of certiorari emerged when the Court was overburdened and unable to keep up with its work.
Two things are notable. First, in every instance, Congress expanded the Court’s certiorari jurisdiction but maintained the clear textual distinction between certification and certiorari, linking questions to the former and cases to the latter.
Second, the point of expanding certiorari was to reduce the number of cases the Court was required to decide.
Certiorari at common law removed entire cases for ordinary review. If the Court could satisfy its appellate obligations by reviewing only a subset of questions—especially a subset chosen by the Justices—then there would be no need to slog through all of those cases in such detail and thus no need for the backlogs in the first place. The Court never had the power to cherry-pick questions, and Congress’s grant of certiorari discretion was not designed to give it such power.
This state of affairs is no mere academic concern.
The modern Court has effectively abandoned the traditional judicial role of deciding cases in favor of targeting preselected questions.
This arrangement may serve the Court’s institutional interests,
but it also pulls the Court into politics.
Professor Alexander Bickel’s defense of certiorari as a way to avoid contested cases is thus inverted; the Supreme Court now uses certiorari to directly engage with the most contentious underlying issues.
As a result, the Court now faces the very challenges to its legitimacy and standing in our political process that Bickel feared. Leading law reviews warn of “grave threat[s] to the Court’s legitimacy” in the wake of “seismic” shifts at the Court.
Leading academics and a former Attorney General warn that the Court’s legitimacy is in question.
Partisan reformers reach for both old ideas to curb the Court—term limits, court packing, jurisdiction stripping
—and some ideas that require a “radical rethinking of how the Court has operated for more than two centuries.”
Before we abandon more than two hundred years of institution building, perhaps solving the puzzle of the Court’s question-selection power could provide a way through the Court’s current legitimacy crisis. The following history and analysis strongly suggest that the Court would be on firmer ground if it returned to a more traditional role of deciding entire cases. This shift would likely curb the Justices’ role in setting national policy and hopefully de-escalate fights over the Court.
In raising these issues, this Essay joins a larger literature examining the Court’s agenda-setting process. The importance of agenda-setting is well-known in law
and political science.
Over the years, scholars have attacked the Court’s certiorari process on a variety of grounds. Some critics say the Court takes too few cases;
some say it takes too many.
Others say the Court’s agenda-setting process is too beholden to the Supreme Court bar,
too dependent on clerks,
or possibly gives the Chief Justice too much power.
Some point out the consequences of the Court’s tendency to select questions from narrow doctrinal areas.
Others have asked why Congress facilitated much of the expansion of the Court’s agenda-setting power.
These studies have largely ignored the statutes that govern the Court’s appellate jurisdiction as well as the Court’s practice of preselecting questions.
This Essay is the first to squarely examine the roots of the Court’s question-selection practices. It questions the uncritical acceptance
of the Court’s practice by directing attention back to those ignored statutes and their histories.
The Essay proceeds in five parts. Part I uses the current statute governing certiorari review of lower federal courts to introduce the textual link between cases and certiorari as distinct from that between certification and questions. It then briefly describes the statutory history described in greater detail in later parts of the Essay. Part II explores the common law history of appellate review from the English legal history through most of nineteenth-century America to understand the role of several important legal devices: the writs of certiorari and error, and error’s equitable analogue, the appeal. Part III focuses on the Evarts Act, which gave the Court certiorari power to choose some cases, and its effects. The key takeaway is that Congress clearly intended—and the Court plainly understood this intent—that the Court take and decide entire cases through certiorari and decide discrete questions through certification. Part IV continues the story, starting with the Judges’ Bill of 1925, which vastly expanded the Court’s power over its docket. Once again, Congress and the Court agreed that certiorari review encompassed entire cases in contrast to certification, which limited review to questions. The remainder of Part IV traces the Court’s subsequent rejection of that agreement in favor of using certiorari to select questions. Part V first explores the consequences of the Court’s departure from its traditional and statutorily authorized role as a decider of cases in favor of a self-guided declarer of law. It then contrasts the Court’s interpretation of the statutes that govern its agenda-control powers with its interpretation of parallel statutes that guide administrative agencies and lower courts.