Academic round-up

By Amanda Frost
on May 5, 2011 at 10:44 am

The Supreme Court today has nearly complete discretion over its docket—too much discretion, some argue.  In a world in which the Court grants only about one percent of the 8000 or so petitions it receives each year, the process of “deciding to decide” is almost as important as the Court’s rulings on the merits, and yet the public knows almost nothing about how such decisions are made.

In a forthcoming article in the University of Pennsylvania Law Review, Professor Kathryn Watts argues in favor of incorporating principles of administrative law into the Court’s case selection process.  She notes that congressional delegations of power to agencies are constrained by public participation, reason-giving, transparency, and the agency’s political accountability, but that none of these factors limit the Supreme Court when selecting cases.  

To improve the process, Professor Watts suggests that the Justices be required to publicly disclose their votes at the cert stage.  Doing so might inspire the Justices to explain their decisions in important cases, in part to avoid the impression that the vote indicates the Justices’ views on the merits.  Furthermore, such a rule could lead the Justices to supervise more closely the work of their law clerks, whom many view as exercising too much control over case selection.  Finally, vote disclosure might give the general public, as well as practitioners, a better sense of how the Court makes these all-important decisions.

In a similar vein, Professor Watts suggests that cert. petitions themselves be made publicly available on the Supreme Court’s website.  She hopes that this would lead to more participation by a broader array of amici at the cert. stage, which would better inform the Court’s case selection process. 

Finally, Professor Watts adds her voice to that of Professor Amanda Tyler in calling for increased use of the certification process.  Although the law currently allows the federal courts of appeals to certify questions of law to the Supreme Court, the practice is rare.  As both Professors Watts and Tyler argue, the benefit of certification is that it gives the lower courts a role to play in choosing issues for Supreme Court review, adding a fresh perspective to what has become an insular and secretive process.