The Volokh Conspiracy
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Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court's power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet despite the significance of this practice, its origins are poorly understood. This Essay uncovers the hidden history of the Court's question-selection powers and reveals an important—and possibly intractable—conflict between the Court's legal authority and its practice.
Scholars usually explain the Court's agenda control as either a power granted by Congress or a natural component of the judicial power. Tracing the statutory, legislative, and common law histories, this Essay presents a novel challenge to these standard narratives. The Court's custom of targeting specific questions is not grounded in the history of appellate practice and Congress never intended to, and likely never did, give the Supreme Court the power to select its own questions.
This history has profound repercussions for the Court's appellate jurisdiction. The question-selection power rests uneasily with both statutory law and Article III's "case or controversy" requirement, risks doing fundamental injustice to litigants, and pulls the Court deeper into politics—all of which put its legitimacy at risk. Abandoning this practice would almost certainly limit the Court's ability to answer hot-button political questions, but it might also help to preserve the Court's legitimacy.
I much look forward to Prof. Johnson's posts.
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