Prof. Ben Johnson (Penn State) Guest-Blogging

I'm delighted to report that Prof. Ben Johnson (Penn State) will be guest-blogging this week about this article of his, just published in the Columbia Law Review; here's the abstract:

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.

Comments

[DaivdBehar]

Is there mention of Article I Section 1 giving all legislative power to the Congress?

[Dan Schiavetta]

Looking forward to this.

No one is sure what the Court's powers are, aside from the vague grant to adjudicate "cases and controversies", although from the start it was clear that it was up to the Court itself to say, whether it was negatively (John Jay's message to Washington that it could not issue advisory opinions) or positively (John Marshall in Marbury).

Some years ago the Rehnquist Court asked litigants to brief an issue that neither had brought up. The purpose obviously was to revisit a Warren era precedent with the goal of abrogating it. I don't remember the case. Does anyone know what I'm talking about?

Also, in the comments to one of the recent "Today in Supreme Court History" posts, mention was made of United States v. Sineneng-Smith, 590 U.S. --- (2020), where the Court chided the Ninth Circuit for bringing in amici to brief an issue neither party had brought up. The Court's rationale was that the 9th was denying the parties' right to representation. But if the 9th had instead asked the parties themselves to brief it (as in the Rehnquist case), would that have been within the Circuit Court's power?

[ReaderY]

I’m not sure I understand. If we the Court abandons the “questions presented” framework and returns to an approach where a writ of certiorari gives power to review any aspect of the case below, wouldn’t that increase the Court’s power rather than decrease it?

Having questions presented has the virtue of giving notice to the parties about the issues the court is interested in looking at and helps them prepare their briefs and arguments.

I also don’t understand the lack of authority argument. If a writ of certiorari gives an appelate court general authority to look at anything, doesn’t that authority necessarily include the authority to look at particular specific questions? In effect, the questions presented is a kind of agenda to guide the court’s review. Congress’ general legislative authority includes the power to set an agenda and limit the topics discussed to that agenda. Why shouldn’t the court’s general appelate power include the authority to set an agenda and limit the topics discussed in arguments before it to the agenda items?

Surely the general power to do anything includes the power to do specific things. By signalling in advance the issues the court intends to focus on, the court helps the parties frame their arguments. If the court did not give the parties any advanced indication of what it is interested in focusing on, the parties would be worse off.

Since the Court had no obligation under a general writ of certiorari to limit its review to the issues the parties raise - certiorari supports a GENERAL reiview giving the Court authority to review anything - surely the parties are better off knowing what issues the court wants to look at in advance, rather than having to guess and writing briefs that end up being completely irrelevant to the court’s review.

[ReaderY]

Perhaps Professor Johnson will attempt to argue that the Court must review the issues and only the issues the parties raise. But is the scope of the common law writ of certiorari so limited? I don’t think so. Appelate courts have always been able to decide cases based on issues and legal positions never raised by either party, as long as they are essential to deciding the case. They are not bound to the positions and arguments the parties make, and they have always been free to form their own view of the law of the case.

[Stephen Lathrop]

Why shouldn’t the court’s general appelate power include the authority to set an agenda and limit the topics discussed in arguments before it to the agenda items?

Because that authority bestows policy making power on the Court. It leads directly to another abusive tendency, trolling for cases. That occurs when a partisan claque on the Court is itching so bad to make new law, that a Justice announces it has a specific interest in considering a particular question—thus alerting like-minded partisans to tailor a case to fit, and present it to the Court.

[ReaderY]

My point here is that the Court could do exactly the same thing without announcing its intentions in advance. It can take a case, and look for cases to take, because it wants to teverse a specific precedent, without ever signalling that it is ddoijg so.

Suppose the Court simply granted a writ of certiorari Donbs without articulating any questions presented. It could proceed otherwise exactly as it has done. It could ask the parties questions about whether Roe should be overruled in oral arguments. It could draft (and possibly issue) an opinion overruling Roe. The only difference is that the briefs wouldn’t necessarily cover this issue. How would that help anyone? How would thst make the parties or the country or the court better off?

If you think the alternative is to limit the Court to consider only the issues the parties raise, that would represent a limitation on the Court’s authority and make the proposal rational. But there is no such limitstion. It can decide a case based on a legal theory bever raised by either party. Given that it has the authority to decide a case on any legal ground it wants once the case is in its hands, the parties (and the country) can only be better off having some advance notice of what might be on its mind, rather than being left completely in the dark until oral argument.

I think the fact the court has general appelate authority, and can decide the case on a ground never raised by the parties, really drives the issues here. Not having questions presented merely leaves the parties in the dark until oral argument. And leaving everybody in the dark doesn’t reduce the court’s authority or tendency towards politicization. On the countrary, one could argue that allowing the parties to argue in advance about the issues on the court’s mind actually represents a check on the court compared to leaving them to prepare itrelevant briefs and then getting waylaid at oral argument. The parties at least have a chance to prepare something relevant and hence a greater chance to persuade.

[Stephen Lathrop]

I see your points. I hope some creative way around them can be found—something which Congress can enact without enlarging the Court.

[Stephen Lathrop]

Before we abandon more than two hundred years of institution build­ing, perhaps solving the puzzle of the Court’s question-selection power could provide a way through the Court’s current legitimacy crisis. The fol­lowing history and analysis strongly suggest that the Court would be on firmer ground if it returned to a more traditional role of deciding entire cases. This shift would likely curb the Justices’ role in setting national pol­icy and hopefully de-escalate fights over the Court.

That feels like a long drink of cool water on a thirsty day.

Very much look forward to these posts. As a non-lawyer, I had no idea of the history, nor the scope of congressional involvement, nor the link between grant of the power of certiorari and the unmanageable size of the docket.

What I did have was a series of extremely unpleasant WTF moments, as I watched the Court apparently throw down and dance upon the Case or Controversy clause. Without knowing it, I have been waiting a long time for this discussion.

[abhudd47]

This is something I've been thinking/wondering about for some time. I look forward to reading what Prof. Johnson has to say about it!