Much has been written (and reviewed) about the modern Supreme Court’s legitimacy and about reforming or restructuring the Court to pull it from this crisis.
Benjamin Johnson identifies a century-old power-grab as an overlooked cause for this crisis: Congress made the Court’s appellate jurisdiction almost entirely by discretionary writ of certiorari in 1925 and the Court within less than a decade arrogated power to use certiorari to select and decide discrete legal questions rather than to hear and resolve entire cases. The resulting system is not inherent in the “judicial power” granted in Article III, not authorized by statutory text, and not intended by Congress; in fact, it contradicts the Justices’ representations in lobbying Congress to eliminate mandatory jurisdiction. By asking and answering specific constitutional questions of its unilateral choosing, the Court “no longer decides cases,” in turn undermining its role as an appellate court and the logical and policy bases for its role as (final?) constitutional arbiter.
The paper presents a comprehensive history of the Court’s appellate jurisdiction, identifying four key moments of evolution: the Judiciary Act of 1789, under which all jurisdiction was mandatory; the Evarts Act in 1891, creating the intermediate courts of appeals; the Judges’ Bill in 1925, pushed by Chief Justice Taft and making discretionary writ of certiorari the near-exclusive basis for appellate jurisdiction; and the Supreme Court Case Selections Act of 1988, which eliminated the last vestiges of mandatory jurisdiction over cases from courts of appeals and state courts. That history and the resulting jurisdictional statutes reveal several things. Congress granted the Court jurisdiction to review, by certiorari, “cases” from courts of appeals and “final judgments or decrees” from state and territorial courts. Certiorari originated as a limited alternative path from the courts of appeals to SCOTUS, but the Court used the tool to take and decide the entire case. In urging passage of the Judges’ Bill, Taft and other Justices represented to Congress that the move to all-certiorari jurisdiction would not change the Court’s practice of taking entire cases. And the Court abandoned that view by the end of 1920s, embracing a power to limit certiorari review to specific questions of the Court’s choosing. Congress did authorize the Court to address “any question of law” when a federal court of appeals certified a question. But this express textual grant to decide discrete issues demonstrates that Congress expected the Court to use certiorari to hear entire cases unless someone outside the Court (the court of appeals) presented a question in a distinct process.
The resulting scheme—unilateral discretion to set its agenda by choosing and deciding singular questions rather than cases—means “the Court takes questions, not cases.” It tgys acts in a way that Congress did not expect or authorize and ceases to function as an appellate body. This produces two main adverse effects.
First, discretionary question selection may be inconsistent with a judicial power that extends to all cases or controversies. Of course courts must decide subsidiary questions to resolve cases. But two things make current practice unique. Justices decide questions independent of the case; the lower court resolves the case after SCOTUS decides the chosen question. And Justices have seized unilateral power to select the questions they decide, rather than answering questions presented to them or authorized by Congress or lower courts. Worse, the Court has denied administrative agencies and lower courts similar discretion to select and decide discrete questions; it reads other jurisdictional statutes narrowly to require these bodies to hear all issues within a case.
Second, this practice undermines the logic of judicial review. Under the classic justification, the Court must decide cases, it does decide cases, and deciding cases requires constitutional judicial review. If the Court does not decide cases, however, the second prong of that justification vanishes. And if the Court selects which constitutional questions to decide and when, it does not act out of any formal or legal obligation.
Although Johnson situates this paper within the Court-reform literature, he does not offer reforms or solutions. This is a work of deep history. But it sheds light on a different facet and cause of the legitimacy crisis—one of the Court’s own making.
I’m incredibly thankful to Howard for highlighting my article. He did a great job of summarizing the piece and explaining why I think it matters. The Court’s question-selection procedures are something that I’ve been thinking a lot about for years now. What the Court is doing is, as the kids say, problematic. It’s hard to square what they do under either the text or the history, and thus it’s hard to escape the conclusion that, for now at least, the Court has an Originalism for thee but not for me approach to statutes.
The originalist framing suggests a fundamental problem with the existing cert process. The Federalist Papers distinguish between the judiciary that has only JUDGMENT and the legislature that has WILL. What’s the difference? Courts traditionally take cases as they find them because the parties show up and the court has an obligation to decide the case. In that case, they render judgment, and as Marshall told us long ago, that may mean declaring law. But the legislature also exercises judgment: What should the tax rate be? Should we go to war? Will we regulate this or that? All of these are judgments. What transforms judgment to will is the ability to choose the subject of your judgment: to control your agenda. Congress has will because it can choose which policies it wants to consider and when. The justices have effectively given themselves the same power to control their agenda—to choose what questions to answer and when. The modern Court has WILL.
Aside from these formal problems (especially for judicial review), the Court’s certiorari practice is also bad for the Court. In some other work, I show that when the Court aggressively manipulates the questions presented (by adding or subtracting questions on their own initiative), it leads to more 5-4 outcomes and more amicus participation. That is, when the justices are most aggressive, the Court is most divided and most engaged with political elites. Importantly, these results hold even after controlling for amicus participation in the cert process; so, this isn’t just a finding that says the Court targets questions in divisive and politically salient cases. There is good evidence that the Court’s decision to manipulate the questions is associated with additional divisiveness and politicization.
A related point I’d like to make that is often overlooked is maybe the most important. It’s easy to be distracted by those cases where the Court adds or subtracts questions. In those instances, it’s blatantly obvious how the Court targets questions to make policy. But the root problem—that the Court answers questions instead of deciding cases—is ubiquitous. By rule, the Court only considers the questions provided, and parties are strongly incentivized to raise only the questions the Court might want to consider. Petitioners are trying to figure out what the Court would add or subtract and put only those questions in the petition. As such, the Court is selecting preferred questions in every cert grant, not just the ones where the parties guessed wrong about what the justices wanted to talk about and the justices fixed it for them by adding or subtracting questions at whim.
Anyway, I care a lot about this, and I’m incredibly thankful to Howard for putting this on your (dear reader’s) radar!