Online Alexander Bickel symposium: Certiorari – at the bar of law or politics?

Kathryn A. Watts is the Garvey Schubert Barer Professor of Law and Associate Dean for Research and Faculty Development at the University of Washington School of Law.  Some of her recent articles have addressed certiorari (University of Pennsylvania Law Review), the role of politics in administrative law (Yale Law Journal), and specific tools for political control of the administrative state (Duke Law Journal).  She also is currently co-authoring a course book on Supreme Court decision-making (Aspen 2013). 

The Supreme Court’s docket during the October 2011 Term covered a wide range of highly charged, hot-button topics, including television indecency, warrantless GPS surveillance, state regulation of immigration and, of course, the Affordable Care Act.  The Court’s coming Term also promises to touch upon a variety of politically explosive issues, such as racial preferences in admissions to state universities and who may challenge the government’s use of electronic surveillance to detect threats, and it is possible that the Court – right in the middle of a presidential election – will grant certiorari and thereby place on its docket cases involving even more politically charged issues, such as same-sex marriage.

A political role that is “professedly discretionary”

So what determines which seventy or so cases out of the thousands of petitions for certiorari filed with the Court each year will earn a prized slot on the Court’s docket?  As all students of the Court know, there are no firm standards.  The Court decides which cases to place on its docket largely out of the public eye and under a cloak of secrecy.  Aside from the Court’s own open-textured language in Rule 10 calling for the Court to pay attention to the importance of the legal issues and the presence of conflict in the courts below, no clear standards exist to cabin the Court’s nearly unfettered discretion to set its own docket.  Indeed, when Alexander Bickel wrote The Least Dangerous Branch in 1962 and reflected on the Court’s passive virtues, he noted that the writ of certiorari thrusts the Court into a political role that is “professedly discretionary.”

Specifically, in The Least Dangerous Branch, Bickel embraced the idea that certiorari “is where the Court is a most political animal” because certiorari enables the Court to decline to exercise jurisdiction that has been given and to stay out of the merits of political issues.  According to Bickel, the Court’s ability to decline to exercise jurisdiction otherwise given helps the Court to respond to the limits of its countermajoritarian role and institutional competence, even though it also underscores the difficulty of reconciling certiorari with Chief Justice Marshall’s statements in Marbury v. Madison (1803) – made at a time when the Court operated as a court of obligatory rather than discretionary jurisdiction – to the effect that the legitimacy of judicial review rests on a court’s obligation to decide cases properly before it.

In light of Bickel’s statements about certiorari in The Least Dangerous Branch, the fiftieth anniversary of Bickel’s book seems as good a time as any to reflect upon the highly discretionary nature of certiorari – which Bickel so clearly embraced in extolling the Court’s passive virtues – and to consider whether the Court’s docket-setting discretion should persist in its current form.  In other words, as Henry Paul Monaghan put it in an essay recently published by the Columbia Law Review, it is worth thinking about whether certiorari is “an area appropriate for the exercise of freestanding, unstructured, ‘all things considered,’ Bickelian-inspired prudential discretion?” Or should the Court’s decisions to take or not take a case be subject to more explicit legal constraints?

These sorts of questions have surfaced from time to time.  For example, during debate about the Judges’ Bill of 1925, which transferred significant docket-setting discretion to the Court, a Senator from Montana commented that he found it difficult to “yield to the idea that the Supreme Court of the United States ought to have the right in every case to say whether their jurisdiction shall be appealed to or not.”  Subsequently, in 1961, Herbert Wechsler argued that “much would be gained if the governing statutes could be revised to play a larger part in the delineation of the causes that make rightful call upon the time and energy of the Supreme Court.”

In addition, upon the seventy-fifth anniversary of the Judges’ Bill, Edward Hartnett – noting that the Court’s power to set its agenda may be even more important than what the Court decides on the merits – argued in an article published in the Columbia Law Review that the “unbounded discretion to decline to decide a case is difficult (if not impossible) to reconcile with the classic justification for judicial review, whereby the power to say what the law is flows from the duty to decide the case.”  Furthermore, Paul Carrington and Roger Cramton argued in 2009 in the Cornell Law Review that the Court’s unlimited discretion to set its own docket has converted it into a “superlegislature.”

The need for more oversight, more accountability

Bickel’s response to these sorts of recurring calls to rein in the Court’s certiorari discretion would likely involve him pointing out as he did in The Least Dangerous Branch that certiorari simply cannot be legally principled in the same way that we expect adjudications on the merits to be legally principled.  In his mind, no concept – “whether strict, loose, or medium constructionist, classical or downright jazzy” – “can get around the sheer necessity” of giving the Court the discretion to limit “each year’s business to what nine men can fruitfully deal with.”  Plus, even if specific standards could be devised, legislating precise standards to guide the Court’s discretion would detract from the Court’s valuable ability to exercise prudence by sidestepping or postponing politically damaging disputes that are better left to the political branches.

Bickel may well be right that it would be very difficult, and perhaps counterproductive or ill-advised, to try to more carefully delineate specific legal concepts to govern the Court’s certiorari decisions. However, even if he is right, it does not necessarily follow that the Court’s actions in the certiorari context should be left completely unchecked as is currently the case. Rather, if Bickel is right that the Court’s docket-setting choices are more political than legal in nature, then it seems appropriate to consider whether there ought to be mechanisms for subjecting the Court’s certiorari decisions to greater scrutiny, oversight, and political accountability while still leaving the Court with the ability to set its own docket.

In other words, if the Court is stepping into a quasi-legislative role in choosing which cases to hear rather than carrying out a traditional judicial role, then why not subject the Court’s certiorari decisions to more oversight and political accountability?  As I recently argued in an article published in the University of Pennsylvania Law Review, some mechanisms that might enable greater oversight and accountability could include requiring the Justices to disclose their votes on certiorari petitions or enabling greater public participation at the certiorari stage.  Perhaps other possible mechanisms exist.

I am hopeful that the fiftieth anniversary of Bickel’s path-breaking book, which focused so insightfully on the relationship between the Court and political actors, might spawn additional discussion about whether any mechanisms might be developed to check the docket-setting discretion that Congress has delegated to the Court without impinging upon the Court’s ultimate ability to sidestep disputes that are better left to the political branches or that do not warrant the Court’s time.