USA Law

Case Selection

Case Selection in the United States

Supreme Court of the United States: Criteria for Selecting Cases

Introduction to Case Selection

The Supreme Court tries to avoid deciding cases whenever it can. This reluctance, which is called judicial self-restraint, stems partly from the crushing volume of work facing the Court but also from a need to maintain stability in the American legal system. Each Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. The Court tries to use this enormous power only when a case presents a pressing constitutional issue.

The Court relies on several criteria to decide if a case requires action. To win Supreme Court review, a case must fall within the Court’s jurisdiction, raise a justiciable legal issue, and concern an issue of constitutional or legal importance. Most cases do not meet these criteria, so the Court refuses to grant certiorari. A denial of a writ of certiorari means that the case is over, and the decision in the lower court stands as final. A denial of certiorari is not a judgment of the Supreme Court, so it is incorrect to say that the Court agreed with the lower court. Denials of writs of certiorari have no value as precedents.

The most fundamental question is whether a case falls within the Court’s jurisdiction. The Court can only hear cases that are mandated by Congress or the Constitution. The Constitution does not give the Supreme Court the power, for example, to hear cases that involve interpreting a state constitution, unless the cases raise the question of conflict with the United States Constitution.

If a case does fall within the court’s jurisdiction, it must also be justiciable, meaning it raises questions that are appropriate for the Court to answer. Under Article III of the Constitution, the Court may hear only “Cases and Controversies.” The Court regards several types of disputes as outside this responsibility. It does not issue advisory opinions-statements of legal interpretation about potential cases. The Court issues opinions only in cases formally brought before it through the legal system. The Court also hears only cases that pass the ripeness test-those that present an actual and substantial threat to individual rights or other constitutional provisions. In 1947, for example, the Court decided in United Public Workers v. Mitchell, that a group of federal workers could not block enforcement of a law that created only the possibility of a threat to their First Amendment rights. Similarly, a case must meet the mootness standard-presenting a current problem that has yet to be resolved. Ruling in DeFunis v. Odegaard in 1974, for example, the Court held that a student could not challenge allegedly discriminatory law school admissions procedures after he had already been admitted to the law school and was about to graduate.

The Supreme Court also requires that a party bringing a case have standing-a strong vested interest in the issues raised in the case and in its outcome. In most instances, for example, a taxpayer cannot sue the government for unwise spending, unless he or she can show a direct injury resulting from the spending. The Court also refuses to hear cases known as political questions, although it often considers cases that affect the political system. The precise definition of a political question is less clear than other Court justiciability doctrines, but analysis of the issue usually focuses on whether a question is best left to the discretion of another branch of government. The Supreme Court does not, for example, hear most cases challenging the president’s foreign policy decisions. Similarly, the Court rarely considers cases involving the military’s rules and regulations, preferring to leave these questions to the armed forces. The political question doctrine does not, however, prevent the Court from issuing rulings on thorny political issues such as how to draw congressional districts.” (1)

Resources

Notes and References

Guide to Case Selection

Note: for information on Certiorari, please see here.

See Also

Judicial politics, Supreme Court, Certiorari, Constitutional court, Public law

Further Reading

  • Baird, V. A. (2004). The effect of politically salient decisions on the U.S. Supreme Court’s agenda. Journal of Politics, 66(3), 755–772.
  • Baird, V. A. (2007). Answering the call of the court: How justices and litigants set the supreme court agenda. Charlottesville: University of Virginia Press.
  • Black, R. C., & Boyd, C. L. (2012a). U.S. Supreme Court agenda setting and the role of litigant status. Journal of Law, Economics, and Organization, 28(2), 286–312.
  • Black, R. C., & Boyd, C. L. (January 2012b). The role of law clerks in the U.S. Supreme Court’s agenda-setting process. American Politics Research, 40(1), 147–173.
  • Black, R. C., & Boyd, C. L. (December 2013). Selecting the select few: The discuss list and the U.S. Supreme Court’s agenda-setting process. Social Science Quarterly, 94(4), 1124–1144.
  • Black, R. C., Boyd, C. L., & Bryan, A. C. (2014). Revisiting the influence of law clerks on the us supreme court’s agenda-setting process. Marquette Law Review, 98, 75.
  • Black, R. C., & Owens, R. J. (2009a). Agenda setting in the Supreme Court: The collision of policy and jurisprudence. Journal of Politics, 71(3), 1062–1075.
  • Black, R. C., & Owens, R. J. (2009b). Analyzing the reliability of Supreme Court justices’ agenda-setting records. Justice System Journal, 30(3), 254–264.
  • Black, R. C., & Owens, R. J. (2011). Solicitor general influence and agenda setting on the U.S. Supreme Court. Political Research Quarterly, 64(4), 765–778.
  • Black, R. C., & Owens, R. J. (2012a). The solicitor general and the United States Supreme Court: Executive branch influence and judicial decisions. Cambridge, U.K.: Cambridge University Press.
  • Black, R. C., & Owens, R. J. (2012b). Looking back to move forward: quantifying policy predictions in political decision making. American Journal of Political Science, 56(4), 802–816.
  • Black, R. C., & Owens, R. J. (2012c). Consider the source (and the message) Supreme Court Justices and strategic audits of lower court decisions. Political Research Quarterly, 65(2), 385–395.
  • Black, R. C., & Owens, R. J. (2016). Courting the president: How circuit court judges alter their behavior for promotion to the Supreme Court. American Journal of Political Science, 60(1), 30–43.
  • Black, R. C., Sorenson, M. W., & Johnson, T. R. (2013, December). Toward an actor-based measure of Supreme Court case salience information-seeking and engagement during oral arguments. Political Research Quarterly, 66(4), 804–818.
  • Blake, W. D., Hacker, H. J., & Hopwood, S. R. (2015, December). Seasonal affective disorder: Clerk training and the success of Supreme Court certiorari petitions. Law & Society Review, 49(4), 973–997.
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  • Brenner, S., & Palmer, J. (1990). The law clerks’ recommendations and Chief Justice Vinson’s Vote on Certiorari. American Politics Quarterly, 18(1), 68–80.
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  • Clark, T. S., Lax, J. R., & Rice, D. (2015). Measuring the political salience of Supreme Court cases. Journal of Law & Courts, 3(1), 37–65.
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  • Epstein, L., & Knight, J. (1998). The choices judges make. Washington, DC: Congressional Quarterly.
  • Epstein, L., & Knight, J. (2000). Toward a strategic revolution in judicial politics: a look back, a look ahead. Political Research Quarterly, 53(3), 625–661.
  • Epstein, L., & Segal, J. A. (2000). Measuring issue salience. American Journal of Political Science, 44(1), 66–83.
  • Epstein, L., Segal, J. A., & Victor, J. N. (2002). Dynamic agenda-setting on the United States Supreme Court: An empirical assessment. Harvard Journal on Legislation, 39, 395.
  • Federal Judicial Center. (2015). Historical caseloads of the federal courts.
  • Feldman, A. (October 17, 2016,). Dissents from Denial of Cert (2010–2015).
  • Gooch, D. M. (2015). Ideological polarization on the Supreme Court trends in the Court’s institutional environment and across regimes, 1937–2008. American Politics Research.
  • Harvey, A., & Friedman, B. (2009, April). Ducking trouble: Congressionally induced selection bias in the Supreme Court’s agenda. Journal of Politics, 71(2), 574–592.
  • Klein, D. E., & Hume, R. J. (2003). Fear of reversal as an explanation of lower court compliance. Law & Society Review, 37(3), 579–581.
  • Hurwitz, M. S. (July 2006). Institutional arrangements and the dynamics of agenda formation in the U.S. Supreme Court and courts of appeals. Law & Policy, 28(3), 321–344.
  • Krol, J. F., & Brenner, S. (1990). Strategies in certiorari voting on the United States Supreme Court: A reevaluation. Western Political Quarterly, 43(2), 335–342.
  • Kromphardt, C. D. (2014). Fielding an excellent team: Law clerk selection and chambers structure at the U.S. Supreme Court. Marquette Law Review, 98, 289.
  • Landes, W. M. (1971). An economic analysis of the courts. Journal of Law, Economics, and Organization.
  • Liptak, A. (2008, September 25). A second justice opts out of a longtime custom: The “cert. pool.” The New York Times.
  • Mak, M., Sidman, A. H., & Sommer, U. (2013, March). Is certiorari contingent on litigant behavior? Petitioners’ role in strategic auditing. Journal of Empirical Legal Studies, 10(1), 54–75.
  • Maltzman, F., Spriggs, J. F., & Wahlbeck, P. J. (2000). Crafting law on the supreme court: The collegial game. Cambridge University Press.
  • Maltzman, F., & Wahlbeck, P. J. (1996a). Inside the U.S. Supreme Court: The reliability of the justices’ conference records. Journal of Politics, 58(2), 528–539.
  • Maltzman, F., & Wahlbeck, P. J. (1996b). May it please the chief? Opinion assignments in the Rehnquist Court. American Journal of Political Science, 40(2), 421–443.
  • Maltzman, F., & Wahlbeck, P. J. (2004). A conditional model of opinion assignment on the Supreme Court. Political Research Quarterly, 57(4), 551–563.
  • O’Brien, D. M. (1997). Join-3 votes, the rule of four, the cert. pool, and the Supreme Court’s shrinking plenary docket. Journal of Law & Policy, 13, 779.
  • Owens, R. J. (2010). The separation of powers and supreme court agenda setting. American Journal of Political Science, 54(2), 412–427.
  • Owens, R. J., & Simon, D. A. (March 2011). Explaining the Supreme Court’ shrinking docket. William and Mary Law Review, 53(4), 1219.
  • Find this resource:
  • Owens, R. J., Tahk, A., Wohlfarth, P. C., & Bryan, A. C. (2015). Nominating commissions, judicial retention, and forward-looking behavior on state supreme courts an empirical examination of selection and retention methods. State Politics & Policy Quarterly, 15(2), 211–238.
  • Palmer, J. (1982). An econometric analysis of the us supreme court’s certiorari decisions. Public Choice, 39(3), 387–398.
  • Palmer, J., & Brenner, S. (1995). The Law Clerks’ Recommendations and the conference vote on-the-merits on the U.S. Supreme Court. Justice System Journal, 18(2), 185–197.
  • Peppers, T. C. (2006). Courtiers of the marble palace: The rise and influence of the supreme court law clerk. Stanford University Press.
  • Perry, H. W. (1991). Deciding to decide: Agenda setting in the United States Supreme Court. Cambridge, MA: Harvard University Press.
  • Peters, C. S. (September 2007). Getting Attention The Effect of Legal Mobilization on the U.S. Supreme Court’s Attention to Issues. Political Research Quarterly, 60(3), 561–572.
  • Provine, D. M. (1980). Case selection in the United States Supreme Court. Chicago: University of Chicago Press.
  • Rice, D. (March 2014). The impact of Supreme Court activity on the judicial agenda. Law & Society Review, 48(1), 63–90.
  • Segal, J. A., & Spaeth, H. J. (1993). The Supreme Court and the attitudinal model. Cambridge, U.K.: Cambridge University Press.
  • Segal, J. A., & Spaeth, H. J. (2002). The Supreme Court and the attitudinal model revisited. Cambridge, U.K.: Cambridge University Press.
  • Sommer, U. (2011). How rational are justices on the supreme court of the United States? Doctrinal considerations during agenda setting. Rationality & Society, 23(4), 452–477.
  • Songer, D. R. (1979). Concern for policy outputs as a cue for Supreme Court decisions on certiorari. Journal of Politics, 41(4), 1185–1194.
  • Songer, D. R., Cameron, C. M., & Segal, J. A. (1995). An empirical test of the rational-actor theory of litigation. Journal of Politics, 57(4), 1119–1129.
  • Spaeth, H. J. (2004). Relisting: An unexamined feature of Supreme Court decision making. Justice System Journal, 25(2), 143–158.
  • Spriggs, J. F., Maltzman, F., & Wahlbeck, P. J. (1999). Bargaining on the US Supreme Court: Justices’ responses to majority opinion drafts. Journal of Politics, 61(2), 485–506.
  • Stevens, J. P. (1983). The life span of a judge-made rule. New York University Law Review, 58, 1.
  • Tanenhaus, J., Schick, M., Muraskin, M., & Rosen, D. (1963). The Supreme Court’s certiorari jurisdiction: Cue theory. Judicial Decision-Making, 111, 127.
  • Thompson, D. C., & Wachtell, M. (2009). An empirical analysis of supreme court certiorari petition procedures: The call for response and the call for the views of the solicitor general. George Mason Law Review, 16(2).
  • Ulmer, S. S. (1983). Conflict with Supreme Court precedent and the granting of plenary review. Journal of Politics, 45(2), 474–478.
  • Ulmer, S. S. (1984). The Supreme Court’s certiorari decisions: Conflict as a predictive variable. American Political Science Review, 78(4), 901–911.
  • Wahlbeck, P. J., Spriggs, J. F., & Maltzman, F. (1998). Marshalling the Court: Bargaining and accommodation on the United States Supreme Court. American Journal of Political Science, 42(1), 294–315.
  • Ward, A., & Weiden, D. L. (2006). Sorcerers’ apprentices: 100 years of law clerks at the United States Supreme Court. New York: New York University Press.
  • Zorn, C. J. W. (2002). U.S. Government litigation strategies in the Federal Appellate Courts. Political Research Quarterly, 55(1), 145–166.

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Comments

3 responses to “Case Selection”

  1. International Avatar
    International

    The Court’s agenda-setting process is a long one with numerous opportunities for systematic—as opposed to serendipitous—factors to influence outcomes and the choices justices makes. Some of these influences include politics, law, and external actors such as interest groups. Ultimately, of course, justices are the decision makers and are responsible for casting the votes that will determine whether a litigant gets one final shot or if their legal journey is over.

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  2. International Avatar
    International

    The more experience and familiarity a litigant has with the Court, the more information they possess to make a sophisticated or strategic decision, and this ability leads to higher grant rates by the Court, especially if the level of inequality between the petitioner and respondent is great (i.e., the petitioner is the federal government and the respondent is a poor individual)

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  3. International Avatar
    International

    When weighing whether to pursue an appeal to the Court, it is more likely to do so when the lower court decision invalidates a federal statute or when a large number of amicus briefs are present. On the other hand, if lower court has reversed the trial court, or if the United States has lost in a criminal case, then they are less likely to petition for certiorari because these are costly pursuits with lower chance of success.

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