Which of the following cases would the court most likely grant a writ of certiorari?

Abstract

The Supreme Court has wide discretion to choose the cases it will decide. But how does the Court exercise this discretion? The Supreme Court’s rules explain that it may hear any case “important” enough for it to decide. Unsurprisingly, commentators have criticized this standard as “hopelessly indeterminate” and “intentionally vague.” The Court, however, has said more about how it decides whether to grant review. We need simply to look to its merits opinions. These decisions sometimes offer a brief, informative description of the decision to grant review. These oft-overlooked statements may, in aggregate, be suggestive of trends in the Court’s agenda-setting discretion. This Article presents a text and data analysis of thousands of Supreme Court opinions describing the reason for granting review, collectively illuminating which cases are important enough to merit certiorari. This view into certiorari helps reveal which cases earn the Court’s attention and how the Court’s priorities change over time. This analysis finds, for example, that the Court’s docket shifts in response to large events (e.g., depressions and wars) and to significant political developments (e.g., landmark legislation). And, perhaps more concerning, individual appointments also shape the Court’s docket. The Court should thus better explain its decisions to grant review in the mode of a common law of certiorari. Doing so can improve the interbranch dialogue over judicial reform, offer better information to litigants, and instill greater confidence in our Supreme Court.

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Chapter Study Outline

Introduction

Courts serve the essential functions of arbitrating disputes in society and interpreting the Constitution and the laws. The American judiciary is an independent institution that also serves the separation of powers function of checking Congress and the president. Throughout American history, the judiciary has settled constitutional crises, helped protect the rights and liberties of the American people (including noncitizens), and helped promote the American economy by ensuring liberty. Although the Supreme Court’s constitutional powers are relatively meager, its authority emanates from its ability to interpret the Constitution and laws. Independent but inherently political, the American judiciary has expanded its agenda and its power throughout American history.

1. The Judicial Process

What types of cases does the American judiciary hear and decide? How does it proceed and render its decisions?

• Historically, courts were ruled by sovereigns who rendered judgments that settled disputes between citizens; over time, courts have taken over from kings the power to settle controversies.
• The U.S. court system is based on the Constitution and the law; judges decide cases by applying constitutional principles and relevant statutes to the facts of particular cases.
• Criminal law cases are those in which the government (as the plaintiff) charges an individual (the defendant) with violating a criminal statute.
• Cases of civil law involve disputes between individuals or between individuals and the government where no criminal violation is alleged; in these cases, a plaintiff brings suit against a defendant seeking redress, often monetary damages.
• Public law is that category of cases involving the actions of public agencies or officials, in which the powers of government or the rights of citizens are at issue.
• In deciding cases, American courts follow the doctrine of stare decisis, in which prior decisions (precedents) guide judicial decision making.

2. The Organization of the Court System

What types of courts constitute the federal judiciary? How are those various courts organized and what are their responsibilities? How are justices and judges selected?

• There are three main types of courts: trial courts, courts of appeals, and supreme courts.
• Whereas nearly 99 percent of all court cases in the United States are heard in state courts, cases involving federal laws or treaties or the U.S. Constitution, as well as those in which the national government is a party, are heard in federal courts. If a civil case involves the citizens of more than one state or if there is an appeal from a lower court, a case may also be heard at the national level.
• Lower federal courts—district and appellate courts—handle most federal cases of original jurisdiction.
• There are eighty-nine district courts in the fifty states; additional district courts reside in the District of Columbia, Puerto Rico, and in each of three U.S. territories.
• The appellate courts, organized in twelve geographical circuits and another for the federal circuit, review decisions of district courts (along with some federal agency decisions).
• The Supreme Court is the highest court, presided over by the chief justice and eight associate justices, all of whom are appointed by the president (who nominates) and the Senate (which confirms).
• Partisanship leads to intense struggles over nominees to the federal courts, including Supreme Court appointments.
• The current chief justice is John Roberts, who serves with eight associate justices: Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

3. How Courts Work as Political Institutions

Treating judges as political actors and the judiciary as an important political institution, what functions do federal courts perform?

• Courts perform “dispute resolution” wherein they engage in fact finding and the judgment of disputes after-the-fact.
• When courts provide clear signals as to how they might rule in a particular case, they provide a mechanism for before-the-fact “coordination” and provide incentives for desirable behavior.
• Justices and judges also engage in “rule interpretation,” thereby determining the scope and content of legislative statutes and the Constitution and applying those rule interpretations to the facts of specific cases.

4. The Power of Judicial Review

What is judicial review? How and when was it established? How frequently and in what way is it used in contemporary American politics?

• Judicial review, which the Supreme Court interpreted for itself in the 1803 Marbury v. Madison case, is the power of the courts to declare actions of the legislative and executive branches invalid or unconstitutional.
• The Court’s power of judicial review of acts of Congress has not been seriously questioned since 1803.
• It has been viewed as a natural judicial power, if not one intended by the framers.
• The court employed the power only sparingly throughout the nineteenth century.
• Between 1986 and 2007, the Supreme Court struck down more than thirty-six acts of Congress.
• Article VI’s supremacy clause is the basis for the Supreme Court’s ability to determine the constitutionality of state legislation or other state actions.
• Increasing legislative delegations to the executive branch and the rise of policy making through the administrative process necessitated judicial review of federal agency actions, though the federal judiciary has given considerable deference to administrative agencies’ rulemaking, provided the agencies can show that they have followed the dictates of the 1946 Administrative Procedure Act.
• Engaging also in judicial review of presidential actions, the Supreme Court is responsible for judging whether the president has exceeded his or her authority when charged with doing so by members of the legislature.
• The increasing and expansive use of judicial review has made the federal judiciary something of a lawmaking body, leading some critics of the judiciary to decry its activism in establishing all manner of laws.

5. The Supreme Court in Action

What is the process by which cases reach the Supreme Court? How is the flow of cases determined? What procedures does the court employ to prepare, hear, and decide on cases?

• Cases reach the Supreme Court both by original jurisdiction and by the Court granting writs of certiorari.
• The Supreme Court has original jurisdiction only in a limited variety of cases, including cases between the United States and one of the fifty states, cases between two or more states, cases involving foreign ambassadors or other ministers, and cases brought by one state against citizens of another state or against a foreign country.
• Federal courts only hear cases that involve actual “cases and controversies” (the mootness criterion) and in which parties have standing (that is, a substantial stake in the outcome of the case).
• In addition to these formal criteria, federal courts are most likely to grant writs of certiorari for cases involving conflicts among federal circuit courts, cases that present important questions of civil rights or liberties, and cases in which the government is the appellant.
• Ultimately, the Court is likely to hear cases based on the preferences and priorities of the justices. The Supreme Court has demonstrated a renewed interest in affirmative action cases, for example. And the Supreme Court recently decided to hear its first major case dealing with gun control since 1939.
• In addition to the Court itself, the solicitor general and federal law clerks play important roles in determining the flow of cases through the federal courts.
• The solicitor general—third in status in the Justice Department—screens cases; more than half of the Supreme Court’s cases emerge through the solicitor general’s office. The solicitor general, among others, may also submit amicus curiae briefs.
• Law clerks assigned to justices screen thousands of petitions for writ of certiorari (cert petitions) and often play key roles in writing opinions.
• The Supreme Court’s procedures involve reading briefs, hearing oral arguments, debating points and deciding in conference, and, finally, writing majority, concurring, and dissenting opinions.

6. Judicial Decision Making

How does the Supreme Court make its decisions? How does it interact with Congress, the president, and the executive branch in the separation of powers framework? How might we consider these interactions as strategic behavior on the part of the Supreme Court?

• Although Supreme Court justices explain their decisions in terms of law and precedent, politics, the composition of the Court, and the ideologies and philosophies of its justices powerfully shape court decisions.
• Supreme Court justices can be activists or show restraint, though these are not synonyms for liberal and conservative ideologies; there are both liberal and conservative activists on the Court.
• The interactions between Congress and the courts constitute a complex and often uncertain game wherein both institutions must anticipate the actions of the other branch when making their decisions.
• The president’s most direct influence on the Court is the power to nominate justices, but once on the bench justices have shown a history of surprising their nominators.
• Once it has made a decision, the Supreme Court must rely on the president, the executive branch, Congress, the states, and lower courts for effective implementation of its rulings.

7. The Expanding Power of the Judiciary

How has the power of the judiciary changed over time? What are the traditional limitations on the federal courts? How did the courts seek to overcome these limitations in the twentieth century?

• The traditional limitations of the federal courts included: the rules of standing, which limited access to the bench; the narrow scope of relief the court could offer to claimants; the court’s lack of enforcement powers; the role of other branches in choosing justices and judges; and congressional power over the size and jurisdiction of the judicial branch.
• Following World War II, the role of the Court expanded, resulting in two judicial revolutions, one substantive and the other institutional.
• The substantive revolution involved the Court’s ruling in policy areas including civil rights, criminal rights, and so forth.
• The institutional or procedural revolution included relaxed standing rules, broader relief in remedies, and employment of structural remedies to enforce judicial rulings, all of which fundamentally expanded the power of the courts.

How does the Supreme Court use the writ of certiorari?

Which kind of case would not be granted certiorari under Rule 10 of the Rules of the Supreme Court of the United States?

What type of case is the Supreme Court of the United States most likely to hear?

When a party files a writ of certiorari to the US Supreme Court how many Justices must vote to hear the case for it to be accepted for review?

What are the most common routes by which a case reaches the Supreme Court?

Which of the following is a power of the president to check the Supreme Court quizlet?