Supreme Court Agenda-Setting Archives

Introduction The Supreme Court has nearly unrestrained discretion to set its own agenda.[footnote]See, e.g., 28 U.S.C. § 1254(1) (2018) (explaining, simply, that federal cases “may be reviewed by the Supreme Court by . . . writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree”); id. § 1257(a) (providing a similar explanation for state cases presenting federal questions); see also Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 197 (1962) (describing the Court’s unparalleled power over “whether, when, and how much to adjudicate”).[/footnote] It could, if it wanted, grant review in only bankruptcy, patent, and tax cases.[footnote]But cf. Act of Mar. 3, 1891, Pub. L. No. 51-517, § 6, 26 Stat. 826, 828 (modifying the Court’s mandatory appellate jurisdiction to exclude revenue and bankruptcy cases, among others, making such cases reviewable only by writ of certiorari).[/footnote] Or it could focus on only Second Amendment challenges. Or it could choose to be a criminal court, summarily rejecting every petition for a writ of certiorari in a civil case. In practice, the Court’s approach to docket selection is not so extreme. It is widely understood that the dominant standard for certiorari is conflict. The Supreme Court is most likely to grant review where there is a split in authority among, say, the federal courts of appeals.[footnote]Sup. Ct. R. 10(a)–(b); see also H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 246 (1991) (“Without a doubt, the single most important generalizable factor in assessing certworthiness is the existence of a conflict or ‘split’ in the circuits.”); Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1631–32 (2008) (“[T]he presence of a conflict remains by far the most important criteria in the Court’s case selection . . . .”).[/footnote] This is because of a longstanding view that federal law should be uniform—that, for example, a federal statute should apply the same way in Kansas City, Kansas, as it does in Kansas City, Missouri.[footnote]See, e.g., Nichols v. United States, 578 U.S. 104, 108 (2016) (describing a circuit split that gave rise to one outcome for a defendant living in “the Kansas City area—on the Missouri side” and a different outcome for a defendant on the Kansas side). For an argument that such splits play an outsized role in the Court’s docket-setting procedures, see Frost, supra note 3, at 1631–32.[/footnote] Commentators dating to the nation’s founding have described the Court’s primary function as “to unite and assimilate the principles of national justice and the rules of national decisions.”[footnote]The Federalist No. 82, at 494 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also Boag v. MacDougall, 454 U.S. 364, 368 (1982) (Rehnquist, J., dissenting) (“The debates in the Constitutional Convention make clear that the purpose of the establishment of one supreme national tribunal was, in the words of John Rutledge of South Carolina, ‘to secure the national rights [and] uniformity of [judgments].’” (quoting Fred M. Vinson, Work of the Federal Courts, Address Before the American Bar Association (Sept. 7, 1949))); Perry, supra note 3, at 246; Frost, supra note 3, at 1631–32.[/footnote] And many Justices, past and present, have also echoed this dominant rationale for review, often suggesting that the Court is duty-bound to establish a uniform federal law.[footnote]See, e.g., City of San Francisco v. Sheehan, 575 U.S. 600, 610 (2015) (“[C]ertiorari jurisdiction exists to clarify the law . . . .”); Bullock v. BankChampaign, N.A., 569 U.S. 267, 273, 276 (2013); Thompson v. Keohane, 516 U.S. 99, 106 (1995); Key v. Doyle, 434 U.S. 59, 67–68 (1977); Tidewater Oil Co. v. United States, 409 U.S. 151, 170 (1972); Hanna v. Plumer, 380 U.S. 460, 463 (1965); Magnum Import Co. v. Coty, 262 U.S. 159, 163 (1923); Lau Ow Bew v. United States, 144 U.S. 47, 58 (1892); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347–48 (1816) (Story, J.) (noting that the Supreme Court’s appellate jurisdiction highlights “the importance, and even necessity of uniformity of decisions throughout the whole United States,” finding that disuniformity “would be truly deplorable”); see also Kansas v. Marsh, 548 U.S. 163, 183 (2006) (Scalia, J., concurring).[/footnote] Indeed, some Justices have traced this obligation to a tacit trade between the Court and Congress, suggesting that the Court implicitly promised to ensure geographic uniformity in federal law in exchange for greater docket discretion.[footnote]See Perry, supra note 3, at 248; Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection, 82 Wash. U. L.Q. 389, 436–37 (2004) (“[S]ome believe that the legislation was based on an explicit commitment that the Justices made to Congress to protect the uniformity of federal law in return for Congress’ ceding the Court so much control over case selection.”) [hereinafter Cordray & Cordray, Philosophy of Certiorari]; but see Perry, supra note 3, at 248 (quoting a Justice as disagreeing with this understanding of the 1925 Judges’ Bill).[/footnote] But this account of the Court’s docket is underspecified. The Supreme Court’s docket encompasses more than just those cases presenting conflicts among state and federal appeals courts. In other cases, the Court considers (for example) whether to overturn its precedents, how to address new circumstances, or when to correct errors. In short, the Court grants certiorari in cases it deems sufficiently “important”—important for whatever reason—to merit review.[footnote]See Sup. Ct. R. 10(c) (noting that the Court may grant certiorari in cases where “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by th[e] Court”).[/footnote] Here, the Court’s discretion is at its apex: It is under no duty (real or imagined) to hear these cases to ensure uniformity. Instead, the Court grants review in these cases for its own reasons—it is free to decide which precedents to revisit, which new circumstances to confront, and which errors to correct. To the extent scholars and commentators have noted the Court’s grants in such cases of importance—i.e., cases not implicating the Court’s longstanding interest in uniformity—they have largely derided it as a standardless exercise of judicial power (or, worse, political power masquerading as judicial power).[footnote]See, e.g., Ryan C. Black & Ryan J. Owens, Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence, 71 J. Pol. 1062, 1073 (2009) (“Justices have nearly total discretion to decide which cases the Court will hear, meaning they have freedom to pursue their raw policy goals . . . .”).[/footnote] Some such scholars have suggested that the Court’s standard for granting certiorari is not only hopelessly vague, but that it is intentionally so.[footnote]See, e.g., The Oxford Companion to the Supreme Court of the United States 154 (Kermit L. Hall ed., 2d ed. 2005) [hereinafter Oxford Companion] (“The justices have been intentionally vague as to what makes a case ‘certworthy.’”); Pamela K. Bookman, The Arbitration–Litigation Paradox, 72 Vand. L. Rev. 1119, 1191 (2019) (suggesting that the Court’s standards for granting review are “intentionally cryptic”); Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 790 (1984) (contending that the Court’s standards for granting review are “hopelessly indeterminate”); Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Colum. L. Rev. 1643, 1723 (2000) (contending that the Court’s standards for granting review are “intentionally . . . murky” (quoting Perry, supra note 3, at 34)); cf. Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett & Dan Himmelfarb, Supreme Court Practice § 4.2 (11th ed. 2019) (“Any attempt to restate the[] criteria [in Supreme Court Rule 10] with greater precision is somewhat temeritous . . . .”).[/footnote] But, again, that’s not quite right. The Court’s decisions to grant review are not wholly standardless. Rather, scholars, practitioners, and commentators have sought these canons in the wrong places, and so they have remained largely obscured. Scholars have understandably looked primarily to the Supreme Court’s Rule 10 for guidance on the considerations governing “[r]eview on a writ of certiorari,”[footnote]Sup. Ct. R. 10. Other important sources of information regarding the Court’s exercise of its certiorari jurisdiction include, most notably, Shapiro et al., supra note 10, § 4, and many of the sources cited therein.[/footnote] especially given the view that there is a “shroud of intense secrecy surrounding the Court,” one that encompasses “the significant discretion Justices exercise over which cases they hear,” both in general and as to the certiorari process specifically.[footnote]See Carolyn Shapiro, The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court, 37 Fla. St. U. L. Rev. 101, 103 (2009); see also Kathryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. Pa. L. Rev. 1, 17 (2011) (“[T]he only real insight the Court gives the public about the factors that motivate its certiorari decisions can be found in Supreme Court Rule 10.”).[/footnote] In truth, however, the Court’s merits opinions offer some (frequently overlooked) suggestions regarding the reasons for granting review. We can thus turn to opinion text to perhaps better understand which sorts of cases present an “important question of federal law that has not been, but should be, settled by th[e] [Supreme] Court.”[footnote]Sup. Ct. R. 10(c); see also Watts, supra note 12, at 17 (conceding that “sometimes the Court will include a cursory explanation of its decision to grant certiorari when the Court ultimately issues its opinion on the merits in the case”).[/footnote] Consider, for example, the Court’s seemingly odd decision to grant review in Allen v. Cooper , which asked whether North Carolina could be held liable for copyright damages, state sovereign immunity notwithstanding.[footnote]140 S. Ct. 994 (2020). Specifically, a videographer who filmed the salvage of Blackbeard’s famed ship, Queen Anne’s Revenge , sought to sue the state for violating his copyright in that footage. Id. at 999. In short, the case asked whether North Carolina could be forced to pay damages for pirating a film about pirates. Cf. Transcript of Oral Argument at 55–56, Halo Elecs., Inc., v. Pulse Elecs., Inc., 579 U.S. 93 (2016) (No. 14-1513), 2016 WL 1028388 (statement of Roberts, C.J.) (loosely characterizing some patent infringement disputes as about “pirates” and some as about “trolls”).[/footnote] The Court’s decision to grant review seems unusual because it agreed to review a case that presented no circuit split and that faithfully applied the Court’s precedents.[footnote]Specifically, the case implicated the Copyright Remedy Clarification Act (CRCA). Allen , 140 S. Ct. at 999. The CRCA was enacted in the 1990s as one part of a package of reforms attempting to hold states liable for intellectual property infringement. See Pub. L. No. 101-553, 104 Stat. 2749 (1990) (codified as amended at 17 U.S.C. § 511 (2018)). That legislative attempt ultimately failed: In 1999, the Supreme Court reviewed the constitutionality of the CRCA’s two companions—the Trademark Remedy Clarification Act (TRCA) and the Patent and Plant Variety Protection Remedy Clarification Act (PPVPRCA)—and concluded that Congress could not have constitutionally abrogated the states’ sovereign immunity under its Article I intellectual property and commerce powers nor under the Fourteenth Amendment. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 672, 675 (1999) (reviewing the TRCA); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 636, 647 (1999) (reviewing the PPVPRCA) (collectively, “the “ Florida Prepaid cases”); Tejas N. Narechania, Note, An Offensive Weapon?: An Empirical Analysis of the “Sword” of State Sovereign Immunity in State-Owned Patents, 110 Colum. L. Rev. 1574 (2010) (reviewing the history of these statutes and the Florida Prepaid cases). Since then, every court of appeals to have considered the CRCA, including in the case on review, concluded that that statute is likewise unconstitutional. See, e.g., Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1301, 1314–15 (11th Cir. 2011); Chavez v. Arte Publico Press, 204 F.3d 601, 604 (5th Cir. 2000). And the Court’s opinion explains that the outcome, affirming the Fourth Circuit’s decision, was practically commanded by precedent. Allen , 140 S. Ct. at 1001 (“The slate on which we write today is anything but clean. Florida Prepaid , along with other precedent, forecloses each of [petitioner]’s arguments.”).[/footnote] Indeed, the Court’s decision to grant review in Allen appeared to puzzle some notable commentators.[footnote]See, e.g., Samuel V. Eichner, Will SCOTUS Salvage the Copyright Remedies Clarification Act in Allen v. Cooper ?, Finnegan: Incontestable® Blog (Oct. 22, 2019), https://www.finnegan.com/en/insights/blogs/incontestable/will-scotus-salvage-the-copyright-remedies-clarification-act-in-allen-v-cooper.html [https://perma.cc/DM38-4YR5] (noting, before the case was decided, how narrow the question “before the Court in Allen v. Cooper ” was). I was among those who thought it unlikely that the Court would agree to hear this case. See Steven Seidenberg, US Perspectives: In US, No Remedies for Growing IP Infringements, IP Watch (Mar. 4, 2019), https://www.ip-watch.org/2019/03/04/us-no-remedies-growing-ip-infringements/ [https://perma.cc/USA9-ECWD] (quoting my skep-ticism); see also Mark Lemley (@marklemley), Twitter (Mar. 23, 2020), https:// twitter.com/marklemley/status/1242133956612546561?s=20 [https://perma.cc/5Q49-NJHN] (humorously paraphrasing the Court’s opinion in the case as “we decided this issue 20 years ago, and we’re not sure why we took this case”).[/footnote] So why did the Supreme Court grant Frederick Allen’s petition for certiorari? The Court’s opinion in Allen suggests the reason. There, the Court wrote that it granted review “[b]ecause the Court of Appeals held a federal statute invalid” (namely, a federal statute purporting to abrogate the state’s immunity).[footnote] Allen , 140 S. Ct. at 1000.[/footnote] Where might a petitioner find this standard for granting review? The Supreme Court Rules—the rules established by the Court itself to govern Supreme Court practice and procedure—do not explicitly note a statute’s unconstitutionality as among the considerations governing review on certiorari.[footnote]See Sup. Ct. R. 10. These Rules are authorized by the Rules Enabling Act. 28 U.S.C. § 2071(a) (2018) (“The Supreme Court . . . may from time to time prescribe rules for the conduct of their business.”). But the Supreme Court had issued such rules long before Congress passed that Act. Historical Rules of the Supreme Court, Sup. Ct. of the U.S., https://www.supremecourt.gov/ctrules/scannedrules.aspx [https://perma.cc/2N46-8H78] (noting rules dating back to 1803). These rules cover a wide range of matters. Compare Sup. Ct. R. 10, 11, 18.1 (setting out important standards of procedure), with Sup. Ct. R. 33 (prescribing the minutiae of permitted margins and materials for filings).[/footnote] But other cases do. In Iancu v. Brunetti , decided the year before, the Court explained that “when a lower court has invalidated a federal statute,” its “usual” course is to grant review.[footnote]139 S. Ct. 2294, 2298 (2019) (“As usual when a lower court has invalidated a federal statute, we granted certiorari.”). Brunetti regards a First Amendment challenge to a provision of the Lanham Act barring the registration of “immoral or scandalous” trademarks. See id.; see also 15 U.S.C. § 1052 (2018).[/footnote] Allen and Brunetti follow in a line of cases setting out this standard for granting review.[footnote]See, e.g., United States v. Kebodeaux, 570 U.S. 387, 391 (2013) (suggesting that review is warranted when a “[c]ourt of [a]ppeals [holds] a federal statute unconstitutional,” and citing a line of cases in support of that view). But see infra note 33 and accompanying text (noting cases where the Court has declined to review a decision holding a federal statute invalid).[/footnote] Such cases thus offer one example of the Court’s approach to certiorari in cases presenting potentially important—but splitless—questions. At one basic level, these cases suggest that the Court is likely to review cases holding a federal statute unconstitutional—such cases, that is, are sufficiently “important” to merit review.[footnote]See Sup. Ct. R. 10(c); see also Michael R. Dreeben, Partner, O’Melveny & Myers LLP, Case Selection and Review at the Supreme Court: Statement for the Presidential Commission on the Supreme Court of the United States 15 (June 25, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/06/Dreeben-Statement-for-the-Presidential-Commission-on-the-Supreme-Court-6.25.2021.pdf [https://perma.cc/9NF6-855Z]; Marcia Coyle, Supreme Court Brief: SCOTUS Advocates Dish on Barrett, Biz Docket and Vote Dynamics (June 23, 2021) (on file with the Columbia Law Review ) (quoting Kannon Shanmugam as stating that when “statutes are found unconstitutional,” that gives rise to “automatic cert[iorari] grants”). But see infra note 33.[/footnote] This is so even when the statute’s fate seems a fait accompli, and even where there appears little for the Court to add over the judgment on review.[footnote]See Allen , 140 S. Ct. at 1007 (concluding that “ Florida Prepaid all but prewrote our decision today”).[/footnote] Moreover, these cases are only one example of a more generalizable certiorari-related phenomenon that is notable for at least three reasons. First, as described, the Court’s opinions sometimes articulate a standard for certiorari that is not clearly set out anywhere else. Supreme Court Rule 10 offers some scant guidance regarding the considerations governing “[r]eview on a writ of certiorari,”[footnote]Sup. Ct. R. 10.[/footnote] setting out what many observers already know: One, the Court is comparatively likely to grant review in cases presenting conflict; and two, it will also grant review in other “important” cases.[footnote]Cf. Richard L. Pacelle, Jr., The Transformation of the Supreme Court’s Agenda: From the New Deal to the Reagan Administration 28 (1991) (describing the Court’s agenda as “bifurcated” into a “volitional agenda” (analogous to the important-questions docket) and an “exigent agenda” (analogous to the circuit splits docket)).[/footnote] In short, the Court grants review to resolve splits and to address important questions.[footnote]Of course, cases presenting conflicts are not unimportant; indeed, many of these cases present critical questions that are worthy of the Court’s attention. See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (granting certiorari both “to consider an important constitutional question . . . and to resolve a conflict”). Analogously, it is true that some cases on the important-questions docket may, in fact, seem trivial. See Tejas N. Narechania, Certiorari, Universality, and a Patent Puzzle, 116 Mich. L. Rev. 1345, 1382–84 (2018) [hereinafter Narechania, A Patent Puzzle]; cf. Dreeben, supra note 21, at 7, 10 (describing the Supreme Court’s “shortcomings . . . in identifying issues of surpassing importance to the administration of justice that have not resulted in a split” beyond the context of major constitutional questions, such as “abortion, religion, healthcare, certain due process and equal protection rights, and election law”).[/footnote] The Court’s opinions can thus offer a clear(er) articulation of its certiorari canons, notwithstanding critiques decrying Rule 10’s standard for review as too vague.[footnote]See supra note 10.[/footnote] Indeed, the understanding of the certiorari standard derived from Allen and Brunetti helps to explain the Court’s behavior in other cases. It surprised some commentators when, for example, the Court denied certiorari in Regents of the University of Minnesota v. LSI Corp. , a case asking whether state entities enjoy immunity from certain proceedings at the Patent Office.[footnote]926 F.3d 1327 (Fed. Cir. 2019); see also, e.g., Kevin E. Noonan, State of Minnesota Petitions for Certiorari in Regents of University of Minnesota v. LSI Corp. , Patent Docs (Sept. 15, 2019), https://www.patentdocs.org/2019/09/state-of-minnesota-petitions-for-certiorari-in-regents-of-university-of-minnesota-v-lsi-corp.html [https://perma.cc/C3VD-ZYL2] (suggesting that LSI Corp. is “[i]n many ways . . . a quintessential Supreme Court case” and that “failure to grant cert would be an uncharacteristic and surprising action”).[/footnote] Allen and LSI Corp. raised related questions at the crossroads of intellectual property and sovereign immunity. But the Court’s emphasis on cases finding federal statutes unconstitutional helps to explain the Court’s decisions to review the former but not the latter, as the U.S. Court of Appeals for the Federal Circuit upheld the statutory scheme in LSI Corp .[footnote]See LSI Corp. , 926 F.3d at 1330.[/footnote] Observers comparing these two cases—both about state sovereign immunity and intellectual property—might find the differential treatment inexplicable. But if the Court’s certiorari decisions are understood as motivated by a belief that only the Supreme Court ought to hold federal statutes unconstitutional—a belief held for whatever reason, such as comity among the branches or distrust for the appeals courts—rather than an interest in questions regarding state immunity and intellectual property, then the Court’s decisions seem more coherent.[footnote]Notably, the Court’s present asymmetric approach—reviewing difficult questions of unconstitutionality, while pretermitting review for similarly difficult questions of constitutionality—may seem inconsistent with past practice. See, e.g., Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 573 (1935) (explaining that though “[t]he federal court for western Kentucky and the . . . Sixth Circuit [had] held [a statutory amendment to the bankruptcy laws] valid” and that “it ha[d] been sustained elsewhere,” the Court agreed to review the case “[i]n view of the novelty and importance” of the question presented (citations omitted)). Moreover, this asymmetry in the Court’s approach to certiorari may give rise to asymmetric incentives at the courts of appeals. I consider this feature of the Court’s approach to certiorari, among others, in a forthcoming project. See Tejas N. Narechania, Managing Up—Certiorari from the Lower Courts (Mar. 31, 2022) (unpublished manuscript) (on file with author).[/footnote] Such coherence comes only through an analysis of the descriptions of the certiorari grants contained in the Court’s opinions. Second, by setting out its certiorari standard in its opinions, the Court has both retained and exercised significant flexibility in shaping the contours of its important-questions docket over time. Allen , Brunetti , and other such cases not only offer a clear statement regarding one aspect of the Court’s current certiorari standard, they may also suggest an evolution in the Supreme Court’s docket-setting practice. To the extent these cases suggest that the Court will routinely review judgments striking down an act of Congress, such a rule may seem at odds with the congressionally prescribed scope of certiorari jurisdiction. Congress had once required the Court to review a variety of cases holding statutes unconstitutional.[footnote]See, e.g., 28 U.S.C. § 2282 (1970) (repealed 1976) (requiring that a three-judge district court hear any case seeking to enjoin federal law on grounds of unconstitutionality); see also id. § 1253 (2018) (giving the Supreme Court direct appellate jurisdiction over the decisions of three-judge district courts); Id. § 1254(2) (1982) (amended 1988) (giving the Supreme Court appellate jurisdiction over federal court decisions finding a state statute unconstitutional); Id. § 1257 (1982) (amended 1988) (giving the Supreme Court appellate jurisdiction over state court decisions finding a statute, federal or state, unconstitutional). [/footnote] But in 1976 and again in 1988, Congress moved such cases into the Court’s discretionary docket, suggesting that the Court need not always review such cases.[footnote]See Act of June 27, 1988 (Supreme Court Case Selections Act of 1988), Pub. L. No. 100-352, 102 Stat. 662 (1988); Pub. L. No. 94-381, 90 Stat. 1119 (codified in part at 28 U.S.C. § 2284 (1976)); see also H.R. Rep. No. 100-660, at 1 (1988) (explaining that the “bill substantially eliminates the mandatory or obligatory jurisdiction of the Supreme Court” including in various cases holding federal and state statutes unconstitutional); Opposition to Petition for a Writ of Certiorari at 13, Holder v. Humanitarian L. Project, 557 U.S. 966 (2009) (mem.) (No. 08-1498), 2009 WL 1970188 (“[T]his Court does not automatically review decisions invalidating federal statutes.”); Robert L. Stern, Eugene Gressman & Stephen M. Shapiro, Epitaph for Mandatory Jurisdiction, ABA J., Dec. 1, 1988, at 66, 66 (“The Supreme Court’s mandatory jurisdiction is all but gone.”).[/footnote] Indeed, legislative history suggests that Congress found automatic, mandatory review to both denigrate lower courts and prevent the Supreme Court from addressing more pressing matters.[footnote]See, e.g., H.R. Rep. No. 100-660, at 7 (“Perpetuation of a mandated system of appellate review represents an unfortunate and erroneous view of the sensitivity of State courts to constitutional issues. To the extent that issues of paramount Federal importance are raised by State court decisions the Supreme Court is capable of picking these cases through . . . certiorari . . . .”); State of the Judiciary and Access to Justice: Hearings on State of the Judiciary and Access to Justice Before the Subcomm. on Cts., C.L., and the Admin. of Just. of the H. Comm. on the Judiciary, 95th Cong. 536 (1977) (supplemental materials submitted by Robert H. Bork) (“Mandatory Supreme Court review . . . implies that we cannot rely on state courts to reach the proper result in such cases. This residue of implicit distrust has no place in our federal system.” (quoting Comm. on Revision of the Fed. Jud. Sys., DOJ, The Needs of the Federal Courts 13 (1977))); Three-Judge Court and Six-Person Civil Jury: Hearing on S. 271 and H.R. 8285 Before the Subcomm. on Cts., C.L., and the Admin. of Just. of the H. Comm. on the Judiciary, 93rd Cong. 7 (1973) (statement of J. Skelly Wright, J.) (“The burden placed on the Supreme Court of disposing of these appeals . . . is formidable and has been growing. The time of the Supreme Court is extremely limited, and the direct appeal procedure preempts time which the Court might more profitably utilize on more compelling questions where a conflict . . . has developed.”).[/footnote] But Allen and Brunetti , among other cases, hint that what might have been discretionary—what Congress preferred to be discretionary—is, in fact, to some degree automatic. Hence, the Court can deploy its discretion to shift the contours of its docket over time, even in ways that seem in tension with Congress’s preferences. Third, though these cases offer a comparatively clear and relatively new rule for certiorari, we know little about that rule’s scope and foundation. Why has the Court claimed (incorrectly) to grant review automatically in practically any case holding a federal statute invalid (notwithstanding Congress’s possibly contrary preference)? And what sets Allen and Brunetti apart from those other decisions holding a statute invalid and yet evading Supreme Court review?[footnote]See, e.g., 2 U.S.C. § 441a(a)(1)(C), 441a(a)(3), invalidated by SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686 (D.C. Cir. 2010) (en banc), cert. denied, 562 U.S. 1003 (2010); Child Online Protection Act, Pub. L. No. 105-277, 112 Stat. 2681 (1998), invalidated by ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 555 U.S. 1137 (2009); see also Binderup v. Att’y Gen., 836 F.3d 336, 339 (3d Cir. 2016) (holding 18 U.S.C. § 922(g)(1) unconstitutional as applied), cert. denied sub nom. Sessions v. Binderup, 137 S. Ct. 2323 (2017); W. Va. CWP Fund v. Stacy, 671 F.3d 378, 391 (4th Cir. 2011) (concluding that various statutory provisions were repealed by implication), cert. denied 568 U.S. 816 (2012). Some readers might disagree with Stacy ’s inclusion here, contending that decisions holding that statutes have been repealed by implication are meaningfully different from decisions holding statutes unconstitutional. That may be so. But, as suggested above and elaborated below, the Court’s present approach means that we do not know what the Court means to include and exclude when it says that certiorari is warranted in cases “invalidat[ing] a federal statute.” See Iancu v. Brunetti, 139 S. Ct. 2294, 2298 (2019). Do repeals by implication count? As-applied challenges? This uncertainty has important but unknown implications for certiorari practice, as well as for potential efforts to amend the scope of the Court’s docket-setting discretion. See infra note 257 and accompanying text.[/footnote] Neither case says. But while Allen and Brunetti alone do not elaborate on the rationale for this apparent shift in the Court’s certiorari practice, it is worth trying to bring greater coherence to the Court’s certiorari decisions through a more comprehensive analysis of the Court’s briefly stated reasons for granting review. In short, an analysis of the Court’s opinions, describing its decision to grant review, may bring some coherence to our understanding of the institution’s certiorari discretion—that is, it may help identify the patterns and trends that define the Court’s docket.[footnote]Cf. supra text accompanying note 29.[/footnote] But we should be clear that such coherence need not embed any reasoning—that is, it need not explain these patterns and changes over time. We may learn, for example, that the Court prefers to review judgments holding statutes unconstitutional, but we do not learn why. How can we conduct such an analysis? Though Brunetti sets out a standard for certiorari that seems to inform the grant of review in Allen , neither cites the other, neither cites any other authority, and neither engages with changes in the scope of the Court’s congressionally delineated certiorari jurisdiction.[footnote]See Allen v. Cooper, 140 S. Ct. 994, 1000 (2020); Brunetti , 139 S. Ct. at 2298.[/footnote] In short, the Court’s description of the standard for granting review eschews the most important content of traditional doctrinal development—for example, precedents, citations, and analysis—in favor of terse, citationless text.[footnote]One exception seems to be United States v. Kebodeaux , which cites two cases for the proposition that review is warranted when a “[c]ourt of [a]ppeals [holds] a federal statute unconstitutional.” 570 U.S. 387, 391 (2013) (citing United States v. Morrison, 529 U.S. 598 (2000); United States v. Edge Broad. Co., 509 U.S. 418 (1993)). Such exceptions, to the extent there are others, seem exceedingly rare.[/footnote] The Court’s standard for certiorari in important cases thus seems to resist traditional doctrinal evaluation. We can analyze the Court’s opinion text, briefly describing the reasons for granting review, as data.[footnote]See Michael A. Livermore, Allen B. Riddell & Daniel N. Rockmore, The Supreme Court and the Judicial Genre, 59 Ariz. L. Rev. 837, 871 (2017). See generally Law as Data: Computation, Text, & the Future of Legal Analysis (Michael A. Livermore & Daniel N. Rockmore eds., 2019) [hereinafter Law as Data] (exploring the field of computational legal analysis, which uses legal texts as data).[/footnote] Indeed, the Court’s description of a case’s procedural history nearly always notes the grant of certiorari, often (as in the examples above) including a brief description of the decision to grant review, thus giving rise to an opportunity to examine how the Court exercises its docket-setting discretion.[footnote]See infra Figure 1 (noting that the Court’s opinions are coded as having offered a reason for the grant in a majority of its opinions); infra note 103 and accompanying text (noting that nearly 90% of the opinions analyzed here include at least one paragraph containing the term “certiorari”).[/footnote] This Article undertakes such an analysis, drawing on the growing computational legal studies literature—which includes notable pieces examining the opinions of the Supreme Court—to examine how the Court exercises this discretion. Michael Livermore, Allen Riddell, and Daniel Rockmore, for example, have examined both federal appeals courts and Supreme Court opinions to discern the extent to which the Court’s docket (and its merits opinions) are distinct from the dockets and decisions of the federal courts of appeals.[footnote]See Livermore et al., supra note 37, at 841–43.[/footnote] In their study, they find “significant and meaningful” differences between the case topics selected for Supreme Court review vis-à-vis the topics at issue in the courts of appeals’ dockets, and they also find a “growing stylistic distinctiveness” in the Court’s opinions themselves.[footnote]Id. at 842, 881; see also Keith Carlson, Daniel N. Rockmore, Allen Riddell, Jon Ashley & Michael A. Livermore, Style and Substance on the US Supreme Court, in Law as Data, supra note 37, at 83 (examining trends in judicial writing style and typifying genres of judicial opinions).[/footnote] Their work, moreover, “identif[ies] the topics that are correlated, either positively or negatively, with certiorari.”[footnote]Livermore et al., supra note 37, at 843.[/footnote] In this project, I focus on those cases where the Court’s discretion is at its apex—namely, those cases that do not present a split but are decided solely because the Court deemed them important enough to decide—in order to better understand the Court’s important-questions docket in particular, and, by extension, the Court’s own priorities. To do so, I have built and analyzed a dataset of thousands of Supreme Court opinions in such important-questions cases specifically. This descriptive analysis suggests several contributions to the literatures on certiorari, the Supreme Court, and data-driven analyses of legal materials. For one, the collective focus on Supreme Court Rule 10’s (unhelpful) text has obscured the importance of the Court’s own opinions in assessing its certiorari—and, indeed, its greater institutional—priorities.[footnote]See, e.g., Doris Marie Provine, Case Selection in the United States Supreme Court 2 (1980) (“Case selection . . . provides a good indication of the decision-making priorities of the Supreme Court . . . .”); Cordray & Cordray, Philosophy of Certiorari, supra note 7, at 421–22 (“[A] Justice’s ‘feel’ for when an issue is sufficiently ‘important’ to merit plenary review is necessarily informed by his or her conception of the essential nature of the Supreme Court’s responsibilit[ies] . . . .”); Margaret Meriwether Cordray & Richard Cordray, Setting the Social Agenda: Deciding to Review High-Profile Cases at the Supreme Court, 57 U. Kan. L. Rev. 313, 313, 318 (2009) [hereinafter Cordray & Cordray, Setting the Social Agenda] (explaining that a decision to grant or deny a petition is one expression of the Court’s “subjective notions of what is important or appropriate for review” (internal quotation marks omitted) (quoting Eugene Gressman, The National Court of Appeals: A Dissent, 59 ABA J. 253, 255 (1973))); see also Black & Owens, supra note 9, at 1073 (“Justices have nearly total discretion to decide which cases the Court will hear, meaning they have freedom to pursue their raw policy goals . . . .”).[/footnote] We might, that is, learn a lot about the Supreme Court and its docket by simply looking to the Court’s own descriptions of its decisionmaking criteria. The Roberts Court, for example, seems to favor granting review in cases that invite the Court to overrule precedent (i.e., that include the terms overrule* and precedent* ).[footnote]See infra Table 2; infra Table 3; infra Appendix Figure 4; infra note 150 (listing all the cases represented by overrule* during the Roberts Court). Here and throughout the article’s main text, I use an italicized font (like this ) to refer to terms that appear in the results of the data analysis described and presented below. Moreover, as I explain below, I use an asterisk ( * ) to denote terms that encompass multiple related terms. Here, for example, overrule* encompasses both overrule and overruled. This nomenclature is roughly derived from some computational contexts, where asterisks are used as wildcard characters. But, as I elaborate below, such asterisks are not strictly used as wildcard characters here. See infra note 107 and accompanying text.[/footnote] Moreover, this broad-based, data-driven approach also offers insight into the Court’s priorities at various moments in time. In short, this analysis not only helps us learn about certiorari; it helps us learn how priorities have changed over time. The term overrule* , for example, seems not only important to the Roberts Court, it also appears more important to the Roberts Court than any other Court (since Taft).[footnote]See infra Table 2.[/footnote] And the text-analysis approach employed here might also offer some general methodological insights for analyzing other terms that resist traditional doctrinal evaluation—a matter of growing importance to scholars and practitioners.[footnote]See, e.g., Frank Fagan, Natural Language Processing for Lawyers and Judges, 119 Mich. L. Rev. 1399, 1407–08 (2021) (reviewing Law as Data, supra note 37); cf. Transcript of Oral Argument at 8–10, ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401 (Mar. 23, 2022) (noting the reactions of multiple Justices to the petitioner’s reliance upon a “Corpus Linguistic study”); Wilson v. Safelite Grp., Inc., 930 F.3d 429, 440–42 (6th Cir. 2019) (Thapar, J., concurring) (“[C]orpus linguistics is a powerful tool . . . .”).[/footnote] This Article proceeds in three parts. The first describes this data-driven approach to understanding the Court’s docket-setting priorities. Specifically, it begins with a brief description of the Court’s discretion to shape its docket, emphasizing the Court’s practices that have informed this project’s research design. It then describes this specific design. The second Part presents the results of this analysis, focusing on two primary measures for terms appearing in the Court’s descriptions of its certiorari grants—an “Importance Score,” and changes in such scores over time (“Delta,” or Δ). The interpretation of these results identifies three factors driving many of the shifts in the Court’s priorities over time, complicating the received wisdom that it is “temeritous”[footnote]Shapiro et al., supra note 10, § 4.2.[/footnote] to attempt to clarify the Court’s “vague”[footnote]Oxford Companion, supra note 10, at 154.[/footnote] certiorari standard. One, large exogenous events, such as wars or depressions, can have important effects on the Court’s docket. Such effects are, upon reflection, expected: Eras of sustained economic hardship, for example, give rise to bankruptcy cases that require final resolution.[footnote]See, e.g., infra Figure 5.[/footnote] Two, significant political developments, such as landmark legislation, can also drive the Court’s docket.[footnote]See infra section II.B.2.[/footnote] Statutes aimed squarely at the Supreme Court or the judiciary can obviously have such an effect: When, for example, Congress moved vast categories of cases implicating the constitutionality of federal statutes out of the Court’s mandatory docket, questions of constitutional interpretation occupied an even more significant part of the Court’s discretionary docket.[footnote]See, e.g., infra Figure 7.[/footnote] And other notable actions by the political branches—passage, say, of major reforms to the patent statutes—can raise “important question[s] of federal law that ha[ve] not been, but should be, settled by th[e] Court.”[footnote]Sup. Ct. R. 10(c); see infra notes 142, 176–177 and accompanying text.[/footnote] Three, the Court’s important-questions docket seems to have become more volatile in recent years, with new confirmations to the Court seeming to have an especially important effect on changes to the Court’s docket.[footnote]See, e.g., infra Figure 8; infra Table 5.[/footnote] This outcome is especially noteworthy: It may seem controversial that the Court’s interpretation and application of a longstanding rule of procedure—Supreme Court Rule 10—shifts more now, and especially when a new Justice is confirmed to the Court (as compared to other times). In view of this noteworthy outcome, the third Part considers possible reforms to the Court’s certiorari practice and, more specifically, argues that the Court requires a more robust doctrine of certiorari. The Court needs to better explain its approach to certiorari so that the public and the political branches can better assess it. This Article is not, to be sure, the first to advocate for greater transparency in the Court’s certiorari practices.[footnote]See, e.g., Watts, supra note 12, at 42–61; see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5–6, 16–18 (2015) [hereinafter Baude, Shadow Docket].[/footnote] But as Congress and the executive branch consider reforms to the judiciary—and to the Supreme Court in particular—to temper its seeming political character,[footnote]See, e.g., Presidential Commission on SCOTUS: June 30, 2021, The White House, https://www.whitehouse.gov/pcscotus/public-meetings/june-30-2021/ [https://perma.cc/7YSU-2XQE] (last visited Feb. 19, 2022).[/footnote] it is ever more important for the Court to engage in this interbranch dialogue over the appropriate scope of the Court’s docket. Doing so may help both to protect the Court’s legitimacy and to ensure that any reforms to the Court’s docket—for example, limiting the Court’s jurisdiction or expanding its mandatory docket—respond to a more accurate and complete account of the Court’s docket-setting canons.

Supreme Court Agenda-Setting

CERTIORARI IN IMPORTANT CASES

THE ORIGINS OF SUPREME COURT QUESTION SELECTION