The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I suggested yesterday, there appears to be a disconnect between the statute that gives the Court certiorari power and the Court's rules and practice. The former says the Court can take "cases" through certiorari and "questions" when certified by a circuit court. In practice, however, the Court only answers preselected questions. One might think that the power to preselect questions just comes with the general appellate power or is part and parcel of certiorari. If so, there's no problem. Today, I want to look at the relevant history to see if this is or is not the case.
Let's start with certiorari. The oldest and most common use of the writ of certiorari was to order the transfer of records to a superior court. If parts of the record were missing, the reviewing court would issue a certiorari to the lower court to have the missing pieces of the record sent up for review. A second use emerged, primarily in criminal cases, to remove a case when the accused could not get a fair trial in the lower court. The third use is the one that is most relevant. Certiorari could issue "in the nature of a writ of error." Dating back to Edward I, the writ ran to courts to take jurisdiction (usually from administrative tribunals) over appeals as if on error. The rule soon came to be that "certiorari would lie to any body created by statute which acted judicially."
The Supreme Court recognized the same three uses of certiorari. Here's the relevant passage from Harris v. Barber. Note the link to the writ of error:
A writ of certiorari, when its object is not to remove a case before trial, or to supply defects in a record, but to bring up after judgment the proceedings of an inferior court … is in the nature of a writ of error. Although the granting of the writ of certiorari rests in the discretion of the court, yet, after the writ has been granted, and the record certified in obedience to it, the questions arising upon that record must be determined according to fixed rules of law, and their determination is reviewable on error.
Certiorari, as an appellate device, is thus simply a pathway to a writ of error. So, to understand what is possible under common law certiorari, we must explore the writ of error and its equitable analogue, the appeal.
The writ of error allowed the Court to review cases at law, and the appeal brought cases from equity or admiralty. The key difference between them was that error limited review to legal questions and appeals gave the Court power to review law and fact. The similarities, however, are more important. Review on either method was mandatory (the Court was required to decide the case if the petitioner satisfied procedural requirements) and comprehensive (Justices had to review the entire record).
Writing in 1891 in the wake of the Evarts Act (more on that statute tomorrow!), the Court put it this way, "From the very foundation of our judicial system the object and policy of the acts of Congress in relation to appeals and writs of error … have been … to have the whole case and every matter in controversy in it decided in a single appeal." This obligation was so strong and wide-ranging that justices recognized they had an independent duty to search out errors that had evaded counsel. Justices would reverse judgments for errors that the plaintiff-in-error did not include in the bill of exceptions. As the Court put it in 1846, "[I]t is the duty of the court to give judgment on the whole record, and not merely on the points started by counsel."
This is pretty clear language. Appellate review on the writ of error requires the Court to look at and to decide "the whole case and every matter in controversy," or put differently to "give judgment on the whole record," not just discrete preselected questions. This has been true since "the very foundation of our judicial system."
Indeed, the throughline of the Court's practice for more than a century was a cleareyed and universal understanding that the Court had to decide the whole case. Chief Justice Marshall put it best in Cohens (which came to the Court on a writ of error):
[W]ith whatever difficulties, a case may be attended, we must decide it …. [The Court has] no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.
If the appellate power gave the Court the power to focus on particular questions in cases —instead of the full record—it would have been easy to dodge those questions Marshall would "gladly avoid." And if certiorari's role as an appellate device was to simply bring the case to the Court as if on a writ of error, then it wouldn't permit question-selection either.
One Last Thing
A few commenters on yesterday's post asked whether question selection really affects cases. Here's one example. Suppose you put two questions in your certiorari petition: a procedural question and a constitutional question. If you win on either, the Court should reverse the decision below. Let's assume that if the Court considers the procedural question, you would win. Your problem is that the Court likes the constitutional rule propounded in the judgment below. So, what does it do? It grants certiorari only to the constitutional question, says the lower court got it right, and it affirms. If the Court had decided the whole case, you would have won. But they picked the question they wanted to talk about, so you lost. [By the way, if you're interested in how the Court uses its agenda-setting powers to reach issues it shouldn't, I heartily recommend Prof. Monaghan's article On Avoiding Avoidance.]
If you're looking for a clean example of where the Court's willingness to limit review to a particular question caused it to get a case wrong, I suggest comparing Shapiro v. Thompson with Edelman v. Jordan. In Shapiro, the Court simply ignored the question of whether the Eleventh Amendment barred retroactive relief and affirmed the judgment below ordering payment. When the Court examined the question five years later in Edelman, it had to sheepishly admit that it had fouled up earlier cases because it had not been paying attention to all the questions included in those cases.