Tyler B. Lindley, Brigham Young University - J. Reuben Clark Law School, has posted The Law of Certiorari, which is forthcoming in the University of Chicago Law Review:
The Supreme Court’s current certiorari jurisdiction is a powerful tool for judicial agenda control. The conventional wisdom holds that no law controls this discretion and that justices can consider strategic concerns and policy preferences in deciding which cases to hear. The result is a Court with the power to shape its docket and avoid (or seek out) politically fraught or doctrinally inconvenient cases. The Court’s use of this power has attracted criticism from all sides, attacking the Court for taking too few cases, targeting politically favorable cases, or not deciding cases at all but rather making law. But the power is useful for an increasingly originalist court with a narrow view of stare decisis. Unconstrained certiorari allows the Court to sidestep the consequences of those converging beliefs by denying review in cases seeking to overturn longstanding precedents.
But certiorari is not lawless—or at least was not always so. The writ was not originally understood to have authorized personal discretion or judicial gatekeeping. When Congress initially granted the Court discretionary certiorari power, it did so against the backdrop of common-law constraints on judges’ discretion to issue or deny the writ. Indeed, the legislative history explicitly acknowledges these common-law rules, suggesting that Congress was aware of and intended to impose meaningful limits on the Court’s certiorari discretion. For justices committed to the original meaning of statutes, their discretion to deny review to avoid unwanted cases might not be as absolute as they assume. And more broadly, the historical understanding of certiorari offers a template for potential reform, constraining the Supreme Court’s agenda control without completely removing its discretion.
--Dan Ernst
