THE ORIGINS OF SUPREME COURT QUESTION SELECTION

Introduction

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, 1 1 See generally Alexander M. Bickel, The Supreme Court, 1960 Term—Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961) (discussing various doctrines used by the Court to withhold constitutional adjudication). ... Close it was a necessary precondition for the expansion of individual, constitutional rights. 2 2 Before the Court received certiorari power, it was required to hear and decide any case in which an individual claimed a state violated their constitutional rights. It is difficult to imagine that the Court would have incorporated the Fourth, Fifth, Sixth, and Eighth Amendments if every state criminal conviction or sentence challenged on those grounds would come before the Court for mandatory review. See Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Colum. L. Rev. 1643, 1732 (2000); see also infra section II.C. ... Close But the Court does not simply use certiorari to choose its cases; it also uses the writ to select its questions. 3 3 To my knowledge, only one paper focuses on the phenomenon of limited grants of certiorari to particular questions. See Scott H. Bice, The Limited Grant of Certiorari and the Justification of Judicial Review, 1975 Wis. L. Rev. 343, 344. Other scholars have recog­nized the phenomenon in passing while considering other aspects of the Court’s agenda-setting. See Hartnett, supra note 2, at 1707; see also H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 221 (1991) (noting that Justices and clerks “used ‘case’ and ‘issue’ interchangeably” and that “it is the issue, not the case that is primary”). ... Close 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. 4 4 Concurring in part in Citizens United, Justice John Paul Stevens stated:
“[T]he majority decides this case on a basis relinquished below, not in­cluded in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. . . . Our colleagues’ suggestion that ‘we are asked to reconsider Austin and, in effect, McConnell,’ . . . would be more accurate if rephrased to state that ‘we have asked our­selves’ to reconsider those cases.”
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 396 (2010) (Stevens, J., concurring in part) (citation omitted). ... Close 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. 5 5 See 394 U.S. 618, 642 (1969) (affirming the lower court judgments without any mention of the Eleventh Amendment); Jurisdictional Statement at *8, Shapiro, 394 U.S. 618 (No. 9), 1967 WL 129526 (raising the question, “In View of the 11th Amendment, May the Court Award Money Damages?”). The Court summarily affirmed similar judgments in sev­eral other cases, including Sterrett v. Mothers & Childs. Rts. Org., 409 U.S. 809, 809 (1972) (mem.); State Dep’t of Health & Rehab. Servs. v. Zarate, 407 U.S. 918, 918 (1972) (mem.); Wyman v. Bowens, 397 U.S. 49, 49 (1970) (mem.) (per curiam) (citing Shapiro). These sum­mary affirmances were judgments on the merits and thus represented binding precedent on the included questions. See Hicks v. Miranda, 422 U.S. 332, 344 (1975). ... Close 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. 6 6 415 U.S. 651, 670–71 (1974) (noting that the Shapiro opinion “did not . . . refer to or substantively treat the Eleventh Amendment argument” and, after “an opportunity to more fully consider the Eleventh Amendment issue after briefing and argument,” the Court disapproved of the Eleventh Amendment holdings of Shapiro and three cases decided on summary judgment). ... Close 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, 7 7 See Carolene Prods. Co. v. United States, 321 U.S. 760, 760 (1944) (mem.). The Court’s order dropped the following questions: (1) “Did the Government establish liability on the part of the individual petitioners?”; and (2) “Did the Government violate the indi­vidual petitioners’ constitutional rights in calling them as witnesses against themselves?” See id.; Petition for Writ of Certiorari at 7, Carolene Prods., 321 U.S. 760 (No. 674-21). ... Close Gideon v. Wainwright, 8 8 See Gideon v. Cochran, 370 U.S. 908, 908 (1962) (mem.), cert. granted sub nom. Gideon v. Wainwright, 372 U.S. 335, 338 (1963) (adding the question, “Should this Court’s holding in Betts v. Brady be reconsidered?” (citation omitted)). ... Close and Furman v. Georgia, 9 9 The Court’s order added the question: “Does the imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” See 403 U.S. 952, 952 (1971) (mem.). The Court’s order dropped the following questions: (1) “Whether a prospective juror was improperly excluded from petitioner’s jury in violation of the rule of Witherspoon v. Illinois?”; (2) “Whether Georgia’s practice of allowing capital trial juries absolute discretion to impose the death penalty, uncontrolled by standards or directions of any kind, violates the Due Process Clause of the Fourteenth Amendment?”; and (3) “Whether punishment of death by elec­trocution pursuant to provisions of Georgia law for the crime of murder constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?” See id.; Petition for Writ of Certiorari at 2, Furman, 408 U.S. 238 (No. 5059). ... Close as well as in recent cases dealing with same-sex marriage, 10 10 In Hollingsworth v. Perry, 568 U.S. 1066, 1066 (2012) (mem.), the Court’s order added the question: “Whether petitioners have standing under Article III, § 2 of the Constitution in this case.” In United States v. Windsor, 568 U.S. 1066, 1066 (2012) (mem.), the Court’s order added the following questions: (1) “Whether the executive branch’s agree­ment with the court below that DOMA is unconstitutional deprives this court of jurisdiction to decide this case”; and (2) “[W]hether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.” ... Close class certification, 11 11 The Court’s order in Wal-Mart Stores, Inc. v. Dukes, 562 U.S. 1091, 1091 (2010) (mem.), dropped the question: “Whether the certification order conforms to the require­ments of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23,” and added the question: “Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).” See id.; Petition for Writ of Certiorari at *2, Wal-Mart Stores, 562 U.S. 1091 (2010) (No. 10-277), 2010 U.S. S. Ct. Briefs LEXIS 2028. ... Close recess-appointments, 12 12 In Nat’l Lab. Rels. Bd. v. Noel Canning, 570 U.S. 916, 916 (2013) (mem.), the Court’s order added the question: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” ... Close the recognition of Jerusalem as a part of Israel, 13 13 In M.B.Z. ex rel. Zivotofsky v. Clinton, 563 U.S. 973, 973 (2011) (mem.), the Court added the question: “Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President’s power to recognize foreign sover­eigns.” ... Close and whether the Deferred Action for Par­ents of Americans (DAPA) program violated the Take Care Clause, 14 14 In United States v. Texas, 577 U.S. 1101, 1101 (2016) (mem.), the Court added the question: “Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, § 3.” ... Close among others. 15 15 See, e.g., Thomas W. Merrill, Step Zero After City of Arlington, 83 Fordham L. Rev. 753, 769–75 (2014) (describing how the Court decided only the “meta-question” in the case and relied on “drive-by” precedents where the cases providing authority had not actually discussed the relevant question). ... Close

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.” 16 16 Sup. Ct. R. 14.1(a). ... Close 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. 17 17 See, e.g., Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 661, 729 n.206 (1985) (noting the historical use of certiorari to investigate jurisdictional issues). ... Close 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. 18 18 For an overview of appellate practice in the Founding Era, see Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence From the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1417–29 (2021) [hereinafter Parrillo, Originalist Case Against Administrative Regulatory Power]. ... Close 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. 19 19 See infra section II.D. ... Close 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). 20 20 See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (observing how review is mandatory if jurisdiction exists). ... Close

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. 21 21 See infra section III.B. ... Close 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. 22 22 See infra section III.B. ... Close

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.” 23 23 Cohens, 19 U.S. (6 Wheat.) at 404. ... Close 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.” 24 24 Id. It also seems incongruent with the classic justification of judicial review. Tradi­tionally, the Court’s power “to say what the law is” is derivative of its obligation to decide cases. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–77 (1803); see also Bickel, supra note 1, at 42–43; Hartnett, supra note 2, at 1714–15. For a book-length examination of judicial duty with particular attention to Marbury, see generally Philip Hamburger, Law and Judicial Duty (2008) [hereinafter Hamburger, Law and Judicial Duty]. ... Close

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. 25 25 See Cohens, 19 U.S. (6 Wheat.) at 404; Marbury, 5 U.S. (1 Cranch) at 178; Bickel, supra note 1, at 42; Hartnett, supra note 2, at 1713–17. ... Close Rather, the ability to authoritatively answer questions is derivative of the obligation to render judgment in a case. 26 26 See Bickel, supra note 1, at 42; Hartnett, supra note 2, at 1713–17. ... Close 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. 27 27 Judiciary Act of 1891, Pub. L. No. 51-517, § 6, 26 Stat. 826, 828. ... Close 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.” 28 28 Id. ... Close 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” 29 29 McLish v. Roff, 141 U.S. 661, 665–66 (1891). ... Close and further noted that “a case cannot be brought to this court in fragments.” 30 30 Id. at 665. ... Close

The Evarts Act also gave circuit courts the ability to certify individual questions of law to the Supreme Court 31 31 Judiciary Act of 1891 § 6, 26 Stat. at 828. ... Close —just as federal courts certify questions of state law to state supreme courts. 32 32 See Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Ques­tions of State Law, 88 Cornell L. Rev. 1672, 1674 (2003) (discussing how most state high courts offer federal courts the opportunity to “certify” those questions to the state high court). ... Close 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. 33 33 Id. Indeed, the legislative history suggests Congress intended certiorari to be merely a backup power in case the circuit courts were negligent in certifying questions, but that power was to be exercised by bringing the entire case up for review. See Hartnett, supra note 2, at 1656; see also Peter Linzer, The Meaning of Certiorari Denials, 79 Colum. L. Rev. 1227, 1235–36 (1979) (“[Evarts’s] remarks make clear that the draftsmen of the 1891 Act intended the specific reference to certiorari not to create a totally new statutory form of discretionary appeal but simply to serve as a safety valve . . . .”). ... Close

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. 34 34 See Judiciary Act of 1925 (Judges’ Bill of 1925), Pub. L. No. 68-415, § 240(a), 43 Stat. 936, 938–39 (providing for allowance of certiorari to courts of appeals on petition of either party). ... Close Testifying in favor of the bill, the Justices repeatedly promised that certiorari review encom­passed the entire case. 35 35 See infra section IV.A. ... Close Despite their promises, the Justices, on their own initiative, soon eradicated the traditional strictures on appellate review. 36 36 See infra section IV.B. This stands in stark contrast to the modern Court’s careful adherence to limiting remedies to historical analogues. See Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Ind. L.J. 223, 234–36 (2003) (discussing the Court’s conclusion in Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 333 (1999), that, “because the remedy would not ‘histori­cally’ have been available from a court of equity, the district court had no power to prevent the disposition of assets pending adjudication”).

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). ... Close First, they abandoned comprehensive review of the record in favor of lim­ited review of the questions specified by the parties. 37 37 See infra section IV.B. ... Close Later, they began to write their own questions, even questions nobody had asked or questions that were no longer part of the case. 38 38 See infra section IV.C; see also Margaret L. Moses, Beyond Judicial Activism: When the Supreme Court Is No Longer a Court, 14 U. Pa. J. Const. L. 161, 162 (2011) (examining cases in which the Court “decided issues that were not based on a record below, had not been the subject of decisions by lower courts, and sometimes had not even been briefed by parties or amici”). Cases Professor Margaret Moses identified include Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), Montejo v. Louisiana, 556 U.S. 778 (2009), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Moses, supra, at 174–75. ... Close Today, the limited and comprehen­sive review mandated by Congress—and promised by the Justices when they lobbied for expanded discretion 39 39 See infra section IV.A. ... Close —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. 40 40 Sup. Ct. R. 14.1(a). The Court is careful to avoid the “tempt[ation]” to decide questions that are relevant to cases but not included in the petition. See Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 34 (1993) (per curiam) (“Our faithful application of Rule 14.1(a) thus helps ensure that we are not tempted to engage in ill-considered decisions of questions not presented in the petition.”). ... Close

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. 41 41 One of the best contemporary discussions regarding the changing workload of the Court during this period is in Felix Frankfurter & James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (1928) [hereinafter Frankfurter & Landis, Business of the Supreme Court: A Study]. Additional contemporary accounts can be found in H.R. Rep. No. 50-942, at 3–4 (1888) (noting that the Supreme Court was over three years behind on its docket and supporting a measure to narrow its jurisdiction), and in many of the writings and speeches of William Howard Taft in the 1920s. See, e.g., William H. Taft, The Attacks on the Courts and Legal Procedure, Ky. L.J., Oct. 1916, at 3, 18 (arguing that narrowing the Supreme Court’s jurisdiction would facilitate the quicker resolution of cases); see also Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institu­tional Development 201–03 (2012) (recounting the preeminent role Taft played in advo­cating for reforms to the federal judiciary, including granting the Supreme Court greater control over its docket); Hartnett, supra note 2, at 1664–66 (surveying Taft’s arguments for expanding the Supreme Court’s ability to choose the cases that it hears). ... Close 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. 42 42 See 28 U.S.C. § 1254 (2018). ... Close Second, the point of expanding certiorari was to reduce the number of cases the Court was required to decide. 43 43 See Crowe, supra note 41, at 185–87. ... Close 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. 44 44 See Jane S. Schacter, Judicial Capacities, 2020 Wis. L. Rev. 283, 285 (“[The] ability to act selectively is itself an important form of power, and one that animates many critiques of the Court.”). ... Close The modern Court has effectively abandoned the traditional judicial role of deciding cases in favor of targeting preselected questions. 45 45 See Hartnett, supra note 2, at 1707 (noting that, “under current Supreme Court practice, all writs of certiorari are limited writs: None brings forth all properly preserved claims of error within the Supreme Court’s jurisdiction”). ... Close This arrangement may serve the Court’s institutional interests, 46 46 As Professor Judith Resnik described the judiciary in a parallel context, the Court is acting like “a principal, acting on its own behalf to forward particular agendas.” Resnik, supra note 36, at 228. That analysis concerns implied rights and available remedies in the judiciary as a whole, but the common thread is that the Court uses the pose of restraint—limiting its remedies or inquiries—to advance the Justices’ preferred agenda. ... Close but it also pulls the Court into politics. 47 47 See Schacter, supra note 44, at 288–89 (noting that “charges of ‘judicial suprem­acy’ . . . are in fact inspired and fueled precisely by the discretion the Court has to intervene unevenly and to shape policy unpredictably”). ... Close 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. 48 48 See Sanford Levinson, Comment on Ruben and Blocher: Too Damn Many Cases, and an Absent Supreme Court, 68 Duke L.J. Online 17, 26 (2018) (“The current Court, when it wishes to, can be quite aggressive indeed, as demonstrated in Shelby County, Sibelius [sic], and Obergefell, to name only three obvious examples.”). ... Close

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. 49 49 See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L.J. 148, 150–51 (2019). Scholarly treatments of legitimacy concerns are easy to find. See generally, e.g., Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018) (examining the concept of legitimacy and concluding that the Supreme Court’s sociological legitimacy is decreasing); Brian Christopher Jones, Disparaging the Supreme Court, Part II: Questioning Institutional Legitimacy, 2016 Wis. L. Rev. 239 (remarking that a spate of con­troversial decisions has cast the Supreme Court’s legitimacy into doubt, thereby threatening the future of judicial review); Christopher Sundby & Suzanna Sherry, Term Limits and Tur­moil: Roe v. Wade’s Whiplash, 98 Tex. L. Rev. 121, 156–57 (2019) (using statistical modeling to argue that term limits for Justices of the Supreme Court would be unlikely to increase doctrinal stability). But see Stephen E. Sachs, Supreme Court as Superweapon: A Response to Epps & Sitaraman, 129 Yale L.J. Forum 93, 95 (2019) (arguing that a Supreme Court that seeks to appease both sides of public opinion is ultimately unable to remain above politics). ... Close Leading academics and a former Attorney General warn that the Court’s legitimacy is in question. 50 50 See Justin Wise, Holder: Supreme Court’s Legitimacy Can Be Questioned After Kavanaugh Confirmation, Hill (Oct. 8, 2018), https://thehill.com/homenews/admin
istration/410356-holder-supreme-courts-legitimacy-can-be-questioned-after-kavanaugh [https://perma.cc/DK6G-R5AV]; see also Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240, 2240 & n.1, 2241 & nn.2–6, 2252 & n.13 (2019) (reviewing Fallon, supra note 49) (collecting examples). ... Close Partisan reform­ers reach for both old ideas to curb the Court—term limits, court packing, jurisdiction stripping 51 51 On the history of such suggestions, see Tara Leigh Grove, The Origins (and Fragil­ity) of Judicial Independence, 71 Vand. L. Rev. 465, 467, 488–517 (2018). ... Close —and some ideas that require a “radical rethinking of how the Court has operated for more than two centuries.” 52 52 Epps & Sitaraman, supra note 49, at 148. ... Close

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 53 53 See, e.g., Lee Epstein, Jeffrey A. Segal & Jennifer Nicoll Victor, Dynamic Agenda-Setting on the United States Supreme Court: An Empirical Assessment, 39 Harv. J. on Legis. 395, 399–403 (2002); Aziz Z. Huq, The Constitutional Law of Agenda Control, 104 Calif. L. Rev. 1401, 1403 (2016); Daniel B. Magleby, Nathan W. Monroe & Gregory Robinson, Amendment Politics and Agenda Setting: A Theory With Evidence From the US House of Representatives, 34 J.L. Econ. & Org. 108, 108–09 (2018). ... Close and political science. 54 54 For some famous examples, see, e.g., David P. Baron & John A. Ferejohn, Bargain­ing in Legislatures, 83 Am. Pol. Sci. Rev. 1181, 1181–82 (1989); Thomas Romer & Howard Rosenthal, Political Resource Allocation, Controlled Agendas, and the Status Quo, 33 Pub. Choice 27, 27 (1978). ... Close 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; 55 55 See, e.g., Arthur D. Hellman, The Shrunken Docket of the Rehnquist Court, 1996 Sup. Ct. Rev. 403, 432–38; Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft, 90 Minn. L. Rev. 1363, 1378–82 (2006). ... Close some say it takes too many. 56 56 See, e.g., Samuel Estreicher & John Sexton, Redefining the Supreme Court’s Role: A Theory of Managing the Federal Judicial Process 4–6 (1986). ... Close Others say the Court’s agenda-setting process is too beholden to the Supreme Court bar, 57 57 Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89, 89–90 (2009). ... Close too dependent on clerks, 58 58 See, e.g., David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947, 950 (2007); William H. Rehnquist, Opinion, Who Writes Decisions of the Supreme Court?, U.S. News & World Rep., Dec. 13, 1957, at 74. ... Close or possibly gives the Chief Justice too much power. 59 59 Benjamin Johnson, The Supreme Court’s Political Docket: How Ideology and the Chief Justice Control the Court’s Agenda and Shape Law, 50 Conn. L. Rev. 581, 587 (2018). ... Close Some point out the consequences of the Court’s tendency to select questions from narrow doctrinal areas. 60 60 See Daniel Epps & William Ortman, The Lottery Docket, 116 Mich. L. Rev. 705, 717–20 (2018). ... Close Others have asked why Congress facilitated much of the expansion of the Court’s agenda-setting power. 61 61 For various theories, see, e.g., Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 10–11 (2003) (demonstrating that politics shapes and is shaped by judicial review); Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 Stud. Am. Pol. Dev. 35, 36 (1993) (punting disruptive political controversies); Tara Leigh Grove, The Exceptions Clause as a Structural Safeguard, 113 Colum. L. Rev. 929, 940–44 (2013) [hereinafter Grove, Exceptions Clause] (facilitating set­tlement); Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delega­tion in Postwar Europe, 54 Int’l Org. 217, 228 (2000) (locking in partisan gains); J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. Legal Stud. 721, 722, 741–42 (1994) (maximizing political influence during future periods when a party is out of power); Matthew C. Stephenson, “When the Devil Turns . . . ”: The Political Foundations of Independent Judicial Review, 32 J. Legal Stud. 59, 63–64, 71–73 (2003) (pur­chasing insurance); Keith E. Whittington, “Interpose Your Friendly Hand”: Political Sup­ports for the Exercise of Judicial Review by the United States Supreme Court, 99 Am. Pol. Sci. Rev. 583, 583–84 (2005) (achieving partisan gains and avoiding hard questions). ... Close These studies have largely ignored the statutes that govern the Court’s appellate jurisdiction as well as the Court’s practice of preselecting questions. 62 62 See Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. Pa. L. Rev. 1, 5 (2011) (noting that scholars “generally have not focused on the source of the Court’s discretion (namely, delegations from Congress)”). ... Close This Essay is the first to squarely examine the roots of the Court’s question-selection practices. It questions the uncritical ac­ceptance 63 63 Hartnett, supra note 2, at 1706. ... Close 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.