The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thanks to Eugene for letting me guest post this week on my recent essay The Origins of Supreme Court Question Selection, which is just out in the Columbia Law Review.
It took me a long time to realize the Supreme Court doesn't really decide cases: it answers questions. It's not like the Court hides this. Look at its rules. Here's the relevant part from rule 14.1(a): "Only the questions set out in the petition, or fairly included therein, will be considered by the Court."
Now, as observers of the Court will recognize, this isn't strictly true. The Court will often instruct parties to brief questions that aren't in the petition (e.g. Citizens United) or eliminate some questions that are asked from consideration (Dobbs). While this kind of question targeting is admittedly odd (and with a few exceptions, largely ignored in the scholarship), it is only a more aggressive variation of the broader phenomenon: the Court only answers the questions it wants to. It doesn't seem to care about cases much at all.
The distinction between cases and questions is subtle but important. Cases are composed of questions. For a court to decide a case, it must answer some---but not necessarily all---questions in a case. Judgment in a case emerges when a sufficient set of questions has been answered. For an appellate court, things may depend on the posture of the case on appeal. If the lower court got a single question wrong, that might be enough to justify a reversal. On the other hand, the respondent is still free to defend the judgment below on alternative grounds. This means that saying that the lower court got a question wrong may or may not be sufficient to decide a case. And only very rarely could a court affirm a judgment (affirm that the record is free of material errors) by reviewing only one question and ignoring all others.
Untangling the relationship between cases and questions is a complicated business, but hopefully it's at least clear that there is a meaningful distinction between them. So, what to make of the Court's practice of answering discrete questions instead of deciding full cases? Pretty big questions emerge almost immediately: Is a mere question a "case or controversy" under Article III? How does narrowing the focus to preselected questions affect the Court's decision-making and the substantive law it generates? You could probably think of a few others. But what I want to do is step away from the larger constitutional or institutional design questions and just consider how this state of affairs came to be.
It seems strange to us to think that the Court once had almost no control over its docket. Justices had almost no say in which cases they would have to decide, and they had to decide the whole case. It was a different world. Justices didn't have clerks, Westlaw, or even a courthouse. They decided hundreds of cases each term while still "riding circuit" in a world without planes, trains, or automobiles. Today, the justices are aided by clerks drawn from the smartest graduates of the best law schools, assisted by a dedicated team of librarians, and work in their own marble palace. Instead of deciding hundreds of cases, the Court answers a few dozen questions.
This week, I want to tell you part of the story of how we got from there to here. I want to explain how the Court took the power to cherry pick its questions. I say "took" this power because it was not—despite the law office history to the contrary—given to the Court by Congress. Take a look at 28 U.S.C. § 1254:
Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;
(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
The statute makes the now familiar distinction between questions and cases. The Court can review specific questions when they are certified by a circuit court. It reviews cases through certiorari or after a circuit court certifies a question and the Supreme Court orders the lower court to send up the "entire record . . . for decision of the entire matter in controversy." This is worth restating: The statute explicitly links certiorari to cases and simultaneously distinguishes cases from questions, which the Court may consider in isolation only through certification.
This is the statute Congress passed, but it does not reflect the Court's practice. So where did the Court find the power to cherry pick its own questions? Two possibilities seem obvious: First, perhaps question selection is part of the general appellate power or the writ of certiorari. Second, maybe that's what Congress intended when it created the statutory writ of certiorari. My next two posts will consider both of those possibilities. Following that, I'll identify the moment the Court took the power for itself and then bring the story up to the present day. Collectively, these posts will tell the tale of origins of Supreme Court question selection.