Agenda Manipulation: The Supreme Court's Ability to Add/Remove Legal Questions

• In Event: Understanding the Courts in a Post-Dobbs Era

Abstract

The U.S. Supreme Court is not a self-starting institution; it must wait for issues to come to it before deciding them. The Court’s certiorari process is, however, a powerful device that provides the justices with full discretion over cases they hear -- and even which individual questions within those cases they will decide. Thus, while the justices often grant certiorari on all questions presented by the litigants, in roughly 15% of cases, the Court manipulates a certiorari petition by striking questions from consideration, or by drafting specific questions for the parties to brief and argue. In this project, I ask three related questions: 1) what motivates agenda manipulation, 2) how normatively concerning is this behavior, and 3) what happens to legal questions that were cut during certiorari? To approach these questions, I construct an original dataset of all manipulated petitions from 1986-2014 along with the justices’ certiorari voting from 1986-1993. With these novel data, I find that both policy and practical considerations motivate the justices’ decisions. While many legal questions are cut due to over-abundance, the Court sometimes – and in salient cases such as 303 Creative v. Elenis and Dobbs v. Jackson Women’s Health – pares away issues it would prefer not to decide.

Author

• Maron W Sorenson, Bowdoin College