Thursday, June 3, 2021

How The SCOTUS Picks Cases

Recently in discussing the putative Roberts Strategy, I made a major point of stressing that the SCOTUS does not simply take all appeals. In point of fact, the Court accepts very few appeals. It's not my purpose here to try to provide a tutorial on SCOTUS authority and procedures, nor am I truly qualified to do so. You can find a concise and competent Wikipedia version at:

Procedures of the Supreme Court of the United States

with special attention to

Appellate jurisdiction and 

Original jurisdiction

My reason for returning to this subject has to do with the next section--Selection of cases. However, selection--which is largely discretionary--can and does interact with jurisdictional issues in ways that can be somewhat opaque.

To start with, we should note how rare it is that a case actually gets to the SCOTUS, and most of those cases fall under "Appellate jurisdiction". Cases of "Original jurisdiction" are infrequent, typically only one or two per term--simply because cases of that sort are by their nature rare. Note this carefully:

The number of original jurisdiction cases heard by the court is small; generally only one or two such cases are heard per term. Because the nine-member Supreme Court is not well-suited to conducting pretrial proceedings or trials, original jurisdiction cases accepted by the Court are typically referred to a well-qualified lawyer or lower-court judge to serve as special master, conduct the proceedings, and report recommendations to the Court. The Court then considers whether to accept the special master's report or whether to sustain any exceptions filed to the report.

In terms of overall numbers of cases accepted, those are only about 1% of petitions received at the SCOTUS:

Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 9,000–10,000 petitions for certiorari, of which about 1% (approximately 80–100), are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.

With regard to the TX case that we discussed, I believe that we can see there an instance in which jurisdictional issues interact with principles involved in the discretionary selection of cases. There was no real doubt that the issue presented by TX fell under "Original jurisdiction." The SCOTUS did not dismiss the case as not within its jurisdiction, nor did it dismiss the case as failing to state a judiciable issue. 

Nevertheless, it appears that for reasons that remained unstated the SCOTUS decided that they should stay out of the election disputes at that point. We speculated on those reasons, so we won't go through that again--the reasons remain, after all, speculative for all but Court insiders. Possible factors included the enormity of what had happened and the short time involved, the prospect of national disruption, the justices preference for deciding these issues on a different basis, and the fact that another important election law case was already pretty much in the pipeline to the SCOTUS. 

Whatever the reason, the SCOTUS was then presented with a difficult issue: How to dispose of the case while leaving the issues undecided and without prejudicing their own jurisdiction if future cases of similar sort should arise which they might want to decide on the merits. Openly attempting to decline the case on a purely discretionary basis was a non-starter--even though that was in effect what they were doing. That, I suspect, is how the device of "lack of standing" was selected. Standing is one of those issues that the SCOTUS can play around with and change the rules according to circumstances. Thus, they accomplished their purpose without hamstringing the Court for the future. 

That's a theory, and all are free to disagree or to critique any or all of my analysis. Whether or not that was the smart thing to do is a separate issue, which will play out in the future.

Now, back to discretion.

Justice Gorsuch--who supervises cases originating in Colorado--just exercised that discretion in a case involving the free exercise of religion--i.e., Covid regime restrictions affecting worship. Gorsuch declined to take the case. Now, we know from previous cases that Gorsuch is not unsympathetic to free exercise concerns, so why did he act in this way? American Greatness suggests the general considerations behind rejecting the case in a brief article

What you need to understand in reading this brief excerpt (below) is that when the SCOTUS accepts a case under its appellate jurisdiction it is restricted to considering those issues that were previously raised by the parties to the case. In other words, the Court's review of the case is limited, not free and wide ranging. Thus, the Court often turns down cases that have an interesting factual basis if, in their opinion, the issues that were raised in the lower courts fail to get to the heart of the issues the SCOTUS might wish to address. The reason behind this policy is twofold. First, because of its limited resources the SCOTUS tries to limit itself to cases that have a broad impact on the law, while offering a clear solution. Second, by limiting itself in this manner the Court seeks to avoid what could be called collateral legal damage--unforeseen negative consequences flowing from an over broad decision on issues that were not narrowly framed, but not foreseen at the time of the decision. 

In the CO case, the idea appears to be that the case was framed too broadly, rather than focusing narrowly on the Covid restrictions:

Gorsuch, who has jurisdiction over cases out of Colorado, denied the churches’ petition, without referring the matter to the full court. According to CNN, Gorsuch suggested he didn’t think his colleagues would be interested in the arguments put forward by the churches.

CNN reported:

Conservative groups that had supported other challenges to state Covid restrictions did not weigh in in favor of the churches in the Colorado dispute, suggesting that they, too, thought the request was too broad.

What AG left out of its quote from the CNN account provides only a bit more, but it is suggestive of what Gorsuch's thinking might have been:

Unlike other disputes that have drawn close divisions at the court, the Colorado churches took aim at a law that was not specific to the coronavirus but included other public health disasters such as wildfires and earthquakes, as well.

Keep these considerations in mind. We're expecting some major decisions from the Court as it approaches the end of its term. These cases--including the AZ election law case--were all presumably carefully selected because the justices believed that these cases presented the salient issues in the form most conducive to principled decisions. 

UPDATE: I mentioned that the SCOTUS is due to issue some major decisions. Here's a preview from the NYT:

The Supreme Court: Upcoming Cases: 

* A Big Month. June is peak season for Supreme Court decisions. It is the final month of the court’s annual term, and the justices tend to save their biggest decisions for the term’s end. 

* 4 Big Cases. The court is set to rule on the fate of Obamacare, as well as a case that could determine scores of laws addressing election rules in the coming years. It is also taking on a case involving religion and gay rights and one on whether students may be disciplined for what they say on social media (here’s an audio report on that subject; and here’s where public opinion stands on several of the big cases). 

* What to Watch For. The approaches that Amy Coney Barrett, the newest justice, and Brett Kavanaugh, the second-newest, take. They will be crucial because the three liberal justices now need at least two of the six conservatives to form a majority. Before the death of Ruth Bader Ginsburg, the liberals needed only one conservative. 

* Looking Ahead. Next year’s term, which will start in the fall, will have cases on abortion, guns and perhaps affirmative action, and could end up being the most significant term so far under Chief Justice John Roberts.



  1. Saying Wikipedia is balanced is no longer accurate. Just check the two articles on Senator Ron Johnson and Senator Blumenthal.

    1. Did I say that Wikipedia is "balanced"? No.

      I said that this particular article is "concise and competent."

      Do you have a problem with that characterization? If so, please specify.

    2. Little touchy Mark

  2. All things "SCOTUS" are bitter sweet arguments both in the sense of ruled upon and passed over. I guess when it comes down to it like all things in life we wish our side to be on the side of winning and there is never a perfect solution.

    That said... There have been some obvious and complete political disasters which have fallen into the "wtf" category and usually involve unlimited expansion, Roe, US v. Darby, Wickard v. Filburn, etc.

    Where we seem to be now is more or less stuck in the battle of never ending lawfare. Section 5 of the voting rights act forcing federal approval on changes was tossed in Shelby County v. Holder. Now we're looking at section 2 which bars regulations that result in racial discrimination. Another highly abused and overly exploited lawfare antic. However despite whatever the ruling we see, that decision is not going to put a cork into bottle of the feds pushing their grubby little fingers into every crevasse.

    I think the larger looming issue here is that in every "polite" society there is a tipping point of no return and I think we surpassed ours about 100 years ago. Every second issue is over billed as our *hill to die upon*, I sometimes call these things "our generational curb stomping" because despite the hype, their gravity is theoretically irrelevant. Aka it's really only important because you "feel" it is.

    Eventually we will find that *hill to die on* moment but I don't think it will come as long as you can keep over financing new cars, oversized homes and 70+ inch TVs. We're so fat, lazy, spoiled and stupid that we have largely forgotten what a real problem is. Fake elections pretty much rate up there with transgenderisum, CRT and social justice, these subjects may chip away at the stone foundation of reality but that foundation is massive.

    When you can't find a can of beans or a loaf of bread to put into your love ones mouth then we have finally hit a problem. Otherwise liberty is a luxury, not a necessity and deep down 97% know that.

  3. See Prof. Steven L. Winter, decades ago, at, on vagueness of courts’ “Standing” doctrine.