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date: 12 December 2018

Agenda Setting and Case Selection on the U.S. Supreme Court

Summary and Keywords

The Supreme Court’s docket consists of thousands of cases each term, with petitioners hoping at least four justices will be compelled to grant review to their case. The decision to move a case from their docket to their calendar for oral arguments and all intermediate steps is what is known as the agenda-setting process. This is a fundamental step in the judicial process, as the Supreme Court cannot establish precedent and affect policy change without first deciding to review.

Keywords: judicial politics, Supreme Court, certiorari, agenda setting, case selection, constitutional courts, public law

Introduction

Serendipity—a fortunate happenstance. This is how one former clerk described the Supreme Court’s decision to grant review to the handful of cases on their docket (Perry, 1991). In the view of political scientists, however, this is not exactly true. In fact, systematic case characteristics and circumstances are significant in determining whether the Court is likely to grant review. Perhaps a more accurate description is that a case having a combination of all the right qualities is serendipitous—the ability to attract outside interests, conflict amongst circuits, a published dissent at the circuit court level, and so on. Alternatively, the justices’ duty of setting the Supreme Court’s agenda is more accurately described as searching for the proverbial needle in the haystack. Combing through the thousands of cases efficiently, certain qualities make them stand out and worthy of the Court’s attention. The justices are on the hunt for cases that resemble needles among the thousands that look like hay.

The Court has not always had the opportunity to select its cases, or to search for the needle in the haystack; they previously had to review the entire haystack, or close to it. With the Judiciary Act of 1925, also known as the Judges’ Bill, a large majority of the Court’s mandatory jurisdiction was repealed. The Act gave the justices freedom to devise their own docket. Thereafter, cases that were appealed under the removed mandatory jurisdiction were required to submit writs of certiorari—petitions requesting lower court documents to be sent to the higher court. With their newly permitted freedom, the justices could then grant petition and agree to hear cases or they could deny petitions and allow the lower courts’ rulings to stand. The Judiciary Act of 1925 was the first of many congressional acts to reduce the Court’s mandatory caseload throughout the latter half of the century, ending with the Case Selections Act of 1988, which virtually removed it entirely (Perry, 1991).

Understanding how the U.S. Supreme Court sets its agenda is more important than ever before. Figure 1 uses data from the Federal Judicial Center to show two important trends in the size of the Supreme Court’s docket from 1946 through the end of its 2015 term (i.e., June 2016). The top panel presents the number of petitions that seek the Court’s review. As the figure makes clear, there was significant growth in this quantity across most of the 20th century, with a peak in 2006 at more than 10,000 requests. The number has since decreased, but in 2016 there were still roughly 8,600 petitioners asking the Court for a final discretionary review.

Agenda Setting and Case Selection on the U.S. Supreme CourtClick to view larger

Figure 1. U.S. Supreme Court Docket Over Time.

The bottom panel of the figure plots, across the same period of time, the number of petitions for which the Court actually grants review. The effect of time is a bit more difficult to discern here, but, in general, an initial decline from the mid-1940s gave rise to a period of fairly consistent growth up through 1980. In the forty or so years thereafter, the trend has been almost uniformly downward. Indeed, since 2000, the Court has granted review in no more than 100 petitions for each of those 16 terms. This is less than half the volume for which it granted review just prior to the beginning of the decline in the early 1980s. Practically speaking, most parties seeking review have about a 1.0% chance or less of having an effective appeal. This inverse relationship between petitions and grant rates, along with justices’ virtually complete control of their docket means that the nine members’ of the Court influence is greater than ever before, not only on setting their own agenda, but dictating the policy output of the highest court in the land.

The final policy outputs, or the decisions on the merits, tend to be the focus of discussion when it comes to the Supreme Court because of its ability to establish legal precedent for the entire country. However, the agenda-setting decision process should not be over looked. At this stage, the justices choose what kind of cases they want to hear, and they consider the potential final merits outcome (Black & Owens, 2009a). Additionally, any case that the Court does not review still carries binding legal precedent for the circuit in which it was decided. Therefore, it is important to not only understand the case outcome but also why the justices selected that case in the first place. Supreme Court agenda setting cannot be characterized by one decision to grant or deny review. Instead it is a process, with multiple stages of influence and decisions to be made by the justices.

Agenda-setting research is also important because of the practical implications of its findings. Political scientists have uncovered certain factors that increase a case’s likelihood of being granted certiorari. Given that the cost of petitioning the Court for review is high for most parties and the probability of a grant is low, knowing what may increase one’s likelihood of success is useful practical knowledge. It may factor into a party’s decision to expend the time, effort, and finances into continuing to seek review.

Despite the importance of this topic both practically and intellectually, it is still a burgeoning field. The main reason for this is the availability of data. The agenda-setting process begins with a petition for review and ends with the Court’s decision to grant or deny, but this course is a long one with many steps. Much of this work occurs in private, with only the final outcome (i.e., grant or deny) being reported. It is rare that the public is alerted to how justices cast their agenda votes. The most common way this happens is when a justice decides to author a dissent from the denial of certiorari, which has become a growing trend over the last decade (Feldman, 2016). However, of the thousands of cases that were both granted and denied review between the 2010 and 2015 terms, this only occurred 43 times, leaving the public largely in the dark as to what transpires at the agenda stage. Thus, this pivotal process is difficult to dissect (Feldman, 2016).

Because of the secrecy of this process, the single biggest barrier to studying agenda setting is data availability. Initially, most research on agenda setting was solely based on the final case-level outcome: whether the Court granted or denied review. In terms of explaining that decision, researchers were limited to case characteristics that could be easily gleaned from the agenda-setting briefs in case. For example, the earliest scholarship on the Court’s agenda focused on the federal government as a petitioning party, dissents published by the lower court, and cases involving civil liberties (Tanenhaus, Schick, Muraskin, & Rosen, 1963). Also, because information was not released on who specifically had voted to grant (or deny) review (Songer, 1979), all of this research was conducted at the aggregate Court level. Research on individual justice behavior was not possible.

Research has transformed since the initial efforts discussed above (Tanenhaus, Schick, Muraskin & Rosen, 1963; Songer, 1979), due largely in part to information accessibility. Instead of relying on publicly available data from recent terms, researchers looked to archival data to understand what happens between the submission of the certiorari petition and a case being placed on the calendar for oral arguments. Forrest Maltzman, James Spriggs, and Paul Wahlbeck were some of the first to take advantage of this archival data, generating a wide range of research including collegial bargaining (Wahlbeck, Spriggs, & Maltzman, 1998; Spriggs, Maltzman & Wahlbeck, 1999; Maltzman, Spriggs, & Wahlbeck, 2000), opinion assignments (Maltzman & Wahlbeck, 1996b; Maltzman & Wahlbeck, 2004), and the reliability of archival data (Maltzman & Wahlbeck, 1996a).

Thirty-eight past justices archived their personal papers (Library of Congress). While not all justices maintained organized and complete archives of their collection (Black & Owens, 2009b), Justice Harry A. Blackmun chronicled the near entirety of his career, including his time on the Court from 1970 to 1993. In 2004, five years after his death, Justice Blackmun’s papers were made available to researchers at the Library of Congress. His collection spans more than 1,500 boxes that hold important agenda-stage documents like preliminary pool memoranda, discuss lists, and Blackmun’s certiorari vote record.

Obtaining information from these archives, including Justice Blackmun’s, is no easy feat. They are expansive, consisting largely of handwritten notes and typed memos. To use this data for quantitative empirical research, it had to be transformed and made accessible. Thankfully, Epstein, Segal, and Spaeth (2007), with the financial assistance of the National Science Foundation, created a digital archive of Justice Blackmun’s case-selection materials. This digital record from 1986 to 1993 includes preliminary pool memoranda, discuss lists, and records of certiorari votes. Epstein, Segal, and Spaeth’s (2007) work to disseminate these data represents the single greatest contribution to Supreme Court agenda-setting research, and these data have been used in dozens of journal articles on the topic according to Google Scholar. For example, a number of articles have since used data extracted from the Blackmun Archive to examine a variety of aspects relating to agenda setting (e.g., Black & Owens, 2009a, 2012a; Owens, 2010). Prior to the Blackmun archive, a relatively small number of papers had been published on agenda setting. However, with anything new, including data, comes concerns. One potential concern about archival materials is their reliability. Justices are, after all, humans, and they are prone to making mistakes in record keeping. Despite this, the data suggest that past justices were diligent and reliable note takers of their own votes and of their colleagues during conferences; with an agreement rate between their records of 81%–93% (Maltzman & Wahlbeck, 1996a). This reliability is slightly higher for agenda-setting votes, at 85%–95% (Black & Owens, 2009b).

Despite the significant contribution Blackmun’s papers made to agenda-setting scholarship, this research is still evolving. This article provides an overview of the current literature on case selection and agenda setting on the U.S. Supreme Court. It describes both the internal processes by which the Court operates and the current state of scholarly knowledge about the topic. This article begins with a brief overview of the agenda process. Following that explanation, the discussion is grouped into two broad substantive areas: understanding litigants’ decision to appeal and the Court’s decision to review. The article concludes with a few thoughts about productive next steps that researchers may take in analyzing this important stage of the Court’s decision making.

A Brief Overview of Agenda Setting

Before proceeding to the discussion of a grant or denial of certiorari, it is useful to begin with a short overview of how the Court’s agenda-setting process works. The first important aspect to note are the institutional rules governing the Supreme Court’s agenda-setting decisions. Again, Congress has the ability to alter the Court’s appellate jurisdiction to determine which appeals it must hear versus those that it has the discretion to hear. But, of course, Congress does not specify how the Court should go about making its agenda-setting decisions.

The only guidelines the justices have in setting their agenda comes from the Court’s own self-established rules. Rule 10 of the Rules of the Supreme Court identifies the “character of reasons” that the Court should find compelling enough to grant review.1 These reasons include decisions issued by either state supreme courts or U.S. courts of appeals that conflict with either state courts of last resort, U.S. circuit courts, or the Supreme Court. They also include decisions in which either state supreme courts or federal circuit courts decide an issue that has never been settled by the Supreme Court, and lastly, when one of these courts departs “from the accepted and usual course of judicial proceedings” (2013, p. 6). The petitioner is required to discuss their case based on this list of circumstances.

As for the actual process itself, Figure 2 provides a visual overview the steps a “typical” case goes through before the agenda-setting decision is made.2 After a lower court, whether that be a federal circuit court or a state supreme court, rules on a case, the losing party has 90 days following the final judgment to file a petition for writ of certiorari to the Supreme Court. This party is referred to, from this point onward, as the petitioner since they are petitioning the Court to review the lower court’s decision.

Agenda Setting and Case Selection on the U.S. Supreme CourtClick to view larger

Figure 2. Supreme Court Agenda Setting Process for Paid Cases.

Following the initial petition for writ of certiorari, the winning party at the lower level, now known as the respondent, has an opportunity to file a brief in opposition to the petition for certiorari. They may also choose not to respond, which occurs about 81% of the time (Thompson & Wachtell, 2009). However, if the clerks or justices feel that more information is necessary to make a decision to grant or deny, they can call for a response (CFR), which asks the respondent to submit a brief addressing the petitioner’s claims. If the respondent does submit a response to the petition (i.e., about 20% of the time), then the petitioner can have the final word by submitting a reply brief (Thompson & Wachtell, 2009).

In addition to the parties directly involved, interest groups and other affected parties can voice their opinion in the form of amicus curiae, or “friend of the court” briefs. These briefs are thought to provide a signal to the Court of the policy implications of a case beyond that of the petitioner and respondent. That is, the more amicus briefs filed in a case, the more salient and consequential the case and its decision appears to be to the public at large (Caldeira & Wright, 1988).

After the Clerk of the Court receives all petitions and briefs, the materials are distributed to the justices’ chambers. The work of reviewing petitions is among, to quote the late Justice Scalia, the “most onerous” tasks the justices engage in (CSPAN, 2009). To address this concern, the “cert pool” was created in the early 1970s. The cert pool is a labor-sharing agreement whereby only a single law clerk, out of a “pool” of those from a number of chambers, is responsible for providing an in-depth review and analysis of the materials in each certiorari petition. As of February 2017, all of the justices except Justice Alito contribute to the cert pool. The late Justice Scalia did, as well. Pool memos contain a basic summary of the case, the facts and proceedings at the lower court level, the parties’ arguments and amicus brief arguments, and the clerk’s discussion and recommendation of the worthiness for review (Black, Boyd, & Bryan, 2014).3 Once complete, the pool memos are then copied and distributed to each participating justice’s chamber, where they are typically reviewed by a justice’s clerks before being read by the justice herself.

At this point the Court’s formal consideration of the petition begins. The first procedural hurdle to getting one’s case heard by the Court is simply being added to the list of cases that receive a formal vote. That is, the default status for all petitions is that they will be summarily denied without a recorded vote.4 To be rescued from this fate, a petition must be added to the aptly-named “discuss list.” The Chief Justice begins this list by identifying cases he thinks should be discussed. Once he is done, he then circulates the first draft of the list to allow his colleagues an opportunity to make additions. Once a case has been added, it cannot be “voted off,” which is to say a single justice’s interest is sufficient to have the Court formally vote on a case.

Once the discuss list is set, the justices meet in conference to vote on these petitions. These conferences are private meetings that only the justices are allowed to attend. At this stage in the process, different actions can be taken. Some of these are “nonterminal,” in that the action does not end the Court’s consideration of the petition. For example, they can vote to “call for the views of the Solicitor General,” which means that the Court invites the lead appellate attorney for the United States to weigh in on the case (Black & Owens, 2012b). A single justice also can request to hold over the case until the next conference or relist it (Spaeth, 2004). The justices can also vote to grant, vacate, and remand (GVR), in which the Court grants certiorari, vacates the lower court’s decision, and remands the case to the lower court, typically with a recommendation or instruction for the lower court on how to move forward. This often happens when the Supreme Court recently ruled on a related issue that likely impacts the outcome of the case.

Most importantly (and commonly) at the conference, the justices vote to either grant or deny review. The so-called “Rule of Four” specifies that four justices must be in favor of the vote to grant writ of certiorari. Initially, it may seem peculiar that a minority of justices could compel the entire Court to hear a case. This is by design, however, and part of an informal deal struck between the Supreme Court and Congress. In 1925 Congress passed a law that substantially reduced the number of cases that the Court was required to hear. This law action was at the request of the Court itself. When the justices testified before Congress about how they would handle their potential discretion on nonmandatory cases, they discussed how they handled cases that term that were required to petition for certiorari. With so few of these cases, they noted they agreed to hear the case if three to four justices wanted to hear it. Four ended up being the magic number and was written into the law as the threshold for granting review in discretionary cases (Stevens, 1983). It is one of the few “counter-majoritarian” institutions in U.S. politics (the filibuster being another), and it adds an interesting strategic dimension to the voting decision.

Case Supply to the Supreme Court

To this point, this discussion has focused on actions taken by the Supreme Court and the justices who comprise it. The justices have tremendous discretion in terms of deciding which cases they want to hear. However, a full understanding of agenda setting requires that an understanding of not only what happens to a case once it reaches the Marble Palace but also how it arrives there in the first place. Here, the literature on three related topics is reviewed: (a) the decision of a losing litigant to appeal her case, (b) how the Supreme Court signals its interest in a particular issue area to litigants, and (c) how other broader forces shape the content of the Court’s agenda.

The Decision to Appeal

Early literature on litigant decision making assumed that the litigant is a rational actor (Landes, 1971); however, this research primarily focused on trial court decisions and settlements. Songer, Cameron, and Segal (1995) extended this important line of work to examine litigants’ decisions to appeal a U.S. Courts of Appeals ruling to the U.S. Supreme Court. They concluded that criminal defendants do engage in rational behavior when deciding whether to appeal an unfavorable circuit court decision in search and seizure cases. Case facts predict the probability of a search being upheld and this, in turn, influences whether a litigant appeals his losing decision. The more likely a search is upheld, and the less fortunate a defendant is, the less likely he is to appeal. Conversely, if a dissent is published at the lower court level that would cast doubt on the lower court’s decision, then the defendant updates his belief about the strength of his case and is more likely to seek the Court’s review. Subsequent work has extended the scope of litigant thinking to also include the perceived ideological disparity between the lower court and the Supreme Court, with litigants being more likely to appeal as the ideological distance between the lower court and the Supreme Court increases (Mak, Sidman, & Sommer, 2013).

The more experience and familiarity a litigant has with the Court, the more information they possess to make a sophisticated or strategic decision, and this ability leads to higher grant rates by the Court, especially if the level of inequality between the petitioner and respondent is great (i.e., the petitioner is the federal government and the respondent is a poor individual) (Black & Boyd, 2012a). No litigant before the Court has more experience and success than the Solicitor General of the United States. The Office of the Solicitor General (OSG) is tasked with the duty of representing the United States government before the Court. The OSG is involved in some capacity in approximately two thirds of all cases the Supreme Court decides on the merits each term. The OSG oversees all cases involving the U.S. government that lost in the U.S. Court of Appeals, and of the thousands of cases, the OSG must make the critical decision of whether to put the time, effort, and financing into appealing a case to the Supreme Court. With so many cases and so little time, the OSG must also act rationally in selecting cases to appeal. In other words, it must consider the costs of advancing the case, the reviewability of the case, and the likelihood of winning the case should it get reviewed (Zorn, 2002). The evidence suggests it does exactly that. When weighing whether to pursue an appeal to the Court, it is more likely to do so when the lower court decision invalidates a federal statute or when a large number of amicus briefs are present. On the other hand, if lower court has reversed the trial court, or if the United States has lost in a criminal case, then they are less likely to petition for certiorari because these are costly pursuits with lower chance of success.

The Court as an Active Actor

The Supreme Court is viewed as a passive actor because it is the litigant’s decision to take their case to the Court. Even though the Court has nearly complete control over its agenda, it must wait for a case to petition for certiorari before it can rule on a particular legal issue. While this is a widely acknowledged, some research pushes back against this conventional textbook account (Baird, 2007; Rice, 2014). For example, Baird (2004, 2007) examines how Court activity in an issue area during one term influences the flow of cases seeking its attention in later terms. Her results suggest that when the Court issues a salient decision in an issue area, there is a significant increase in cases involving related issue areas at the Supreme Court four to five years later, with this time lag being driven by the time it takes most cases to work their way up to the Supreme Court.

Baird’s (2004, 2007) theory is robust. It is supported by similar research on legal mobilization—attention given to certain issue areas measured by Court decisions, amicus briefs, certiorari petitions and appeals, and law review articles (Peters, 2007). Specifically, even after Court signals in opinions are broken down into narrowly defined issue areas and legal mobilization is controlled for, the Court’s past salient decisions are still significant in predicting the composition of its current agenda. Baird’s (2004, 2007) theory was also tested to determine how salient Supreme Court cases impact the agenda of the lower federal courts, both trial and appellate. Rice (2014) finds that salient Supreme Court rulings in a specific issue area led to fewer cases being heard and decided on that issue in the lower courts in the years immediately following the salient decision. However, three to five years later, interest-group activity and the number of published district and circuit court opinions increases. These findings shed light on Baird’s (2004, 2007) initial findings for the time lag between salient decisions and a spike in the number of related cases: once the message is received, it takes time for an issue to bring about a case before it can enter the federal court system.

Other Aggregate Explanations of the Agenda

Regardless of whether the Court signals for the type of cases they wish to hear, their agenda relies on the litigants’ decision to appeal, as well as their past agenda decisions. Again, the decision to appeal is ultimately the litigants’ (Mak, Sidman, & Sommer, 2013). Beyond being rational, existing work also illustrates that they are influenced by external forces, namely the judicial and political environment in which they make those decisions. One component of the political and judicial environment is the feedback cycle between the Supreme Court and lower courts (Hurwitz, 2006). That is, the Supreme Court’s previous rulings influence whether litigants appeal their case to the circuit courts, which ultimately impacts what is available to appeal to the highest court in the land. This effect is most pronounced for economic cases. Although the Court reviews far fewer economic cases than earlier eras in its history, the justices are eventually compelled to review some of them based on the need to adhere to norms and to fulfill its duty as the final arbiter of the law.

Beyond the nuances of the Court’s docket, another aspect of the composition of the agenda is the size. There is no doubt that the justices have more than enough options to choose from when setting their agenda. Indeed, the Court receives upwards of 9,000 petitions seeking its review each term. However, the number that it ultimately grants review in has dropped markedly across time. What explains, then, why the Court’s docket is shrinking?

This is precisely the question taken up by Owens and Simon (2011), who canvas the literature to offer several possible explanations. Ultimately, they contend, a combination of internal and external influences explains this decline. Their analysis identifies a host of factors associated with the shrinking docket, including the ideological composition of the Court, the average circuit distance from the Supreme Court, the absence of Justice Byron, and the passage of the Judiciary Act of 1988. More specifically, when the Court is more ideologically cohesive, they are more likely to hear more cases. Despite the institutional arrangements to isolate the Court from the political environment in the country, the Court has undergone polarization since the 1950’s (Gooch, 2015), which can make it more difficult to find four justices to agree on a review. Additionally, Justice White believed that the Court should resolve as much circuit conflict as possible, which caused him to frequently vote to grant review. As previously stated, the Judiciary Act of 1988 significantly reduced the Court’s mandatory jurisdiction, so with fewer requirements to place cases on their docket, the justices failed to replace these mandatory cases with discretionary cases.

Decision to Review

The final decision to grant or deny review to a case is the primary outcome of interest at the agenda-setting stage, but various intermediate points are significant as well. To analogize to the study of the Court’s merits decision making, the failure to consider these stages would be equivalent to focusing solely on the final vote on the merits to the exclusion of briefs, oral arguments, or the opinion-writing process. The first subsection to follow describes the decisions that occur before the final decision to grant or deny. Then shift the focus to literature that examines how justices go about making the final agenda-setting decision. Finally, the work horses of this process, the law clerks, and their influence throughout agenda setting are discussed.

Nonterminal Outcomes

The first decision the justices must make is to place a case on the discuss list. Cases that fail to make this list are denied without a recorded vote. This is a pre-assessment of a case’s worthiness to be reviewed by the Court. Thus, based on the petitions, amicus briefs, and cert pool memo, the justices failed to find a compelling reason to further discuss a case.

Given that thousands of petitions are sent to the Court each term, gaining entry onto the discuss list is not an easy task, but how does this initial whittling down compare to the actual agenda-setting decision to grant or deny review? For one, this decision is likely to be hastier considering the vast number of cases that are in contention. Consequently, justices and their clerks are looking for inexpensive informational cues to make this initial cut (Black & Boyd, 2013). Low-cost informational cues are pieces of information about a case that take little time to assess or investigate (Caldeira & Wright, 1990; Black & Boyd, 2013). This can be as simple as the number of amicus briefs filed for a case or what type of case law is in question (e.g., civil liberties vs. economics, etc.).

In a related vein, the identity of the parties involved in a case is also easy to assess and can provide some useful information. The presence of the United States as the petitioner (Caldeira & Wright, 1990) or amicus (Black & Boyd, 2013) significantly increases the likelihood of a case appearing on the discuss list. Any additional amicus briefs (Caldeira & Wright, 1990) as well as a constitutional claim (Black & Boyd, 2013), a published dissent at the circuit level, and some type of conflict among the lower federal courts (Black & Boyd, 2013; Caldeira & Wright, 1990) also increase this likelihood. Conversely, unpublished opinions from the circuit court (Black & Boyd, 2013) and higher levels of policy agreement between the lower court and Supreme Court (Black & Boyd, 2013; Caldeira & Wright, 1990) lowers the likelihood of a case appearing on the discuss list. All of these examples are low-cost cues, easily accessible for clerks to relay to the justices.

Once the number of cases is narrowed, justices and their clerks can invest more time and energy into seeking information to better inform their decision of a case’s worthiness of review. Even with more time, many of the inexpensive cues listed above that are significant in predicting a case’s likelihood of being placed on the discuss list are also significant in predicting their likelihood of being granted review, in addition to other low-cost cues like the ideological composition of the lower court panel. Justices are increasingly likely to audit appellate court decisions as the three-judge panel becomes ideologically distant, regardless of the decision (Black & Owens, 2012c).

A common thread throughout the preliminary agenda-setting process is information. The justices need quality information to make their decisions, but this information also needs to be easily accessible, and this is not always the case. Two options at the Court’s disposal are the ability to call for a response (CFR) and/or to call for the views of the Solicitor General (CVSG).

A CFR occurs when a respondent, who initially waived his or her right to file a response to a petition, is asked to submit one by the Court. This is a relatively newer practice that did not start until the mid-1970s to help lessen the burden on the Office of the Solicitor General (OSG). Previously, the OSG was required to file a response brief in all cases for which the United States was a respondent, which proved difficult due to the high volume. To lessen their burden, Chief Justice Warren Burger made the response optional for the OSG, which then became the norm for all respondents (Thompson & Wachtell, 2009).

The CFR process typically occurs prior to conference at the behest of a single law clerk (signed off by a justice) or a single justice. A CFR does not occur often, only in approximately 2.7% of cases, most of which are in forma pauperis cases, which are unpaid petitions (Thompson & Wachtell, 2009).5 The benefit to the petitioner is that if the Court CFRs, they know that their case has most likely met the initial threshold a case must pass to be decided by the Court and that it is on the discuss list, because for a justice to add a case to the list, the Court must have a response on file. Therefore, if a justice is willing to wait for a response on a case, it is likely because they are waiting to place the case on the discuss list.

The other option the Court has to obtain more information is to CVSG. This is a more formal decision than a CFR. It occurs during conference and requires four justices to agree to the request, the same number needed to actually grant review in a case (Thompson & Wachtell, 2009). Between the 1971 and 2010 terms, the Court amassed a total of 851 CVSGs, and in all but six cases this action occurred before the Court heard oral arguments (Black & Owens, 2012a).

While research on CFRs is confined to descriptive statistics and bivariate correlations, work on a CVSG is more developed. Black and Owens (2012b) theorize that justices CVSG when they are uncertain about the decision to grant review. Some of the uncertainty surrounds basic case information like legal conflict. Other reasons include the Court wanting more information about the policy impact and/or political implications of deciding to decide a case. By their account, the justices CVSG to answer questions such as how will granting review and deciding a case alter the legal status quo (the current law), and how will Congress and the President react? Their results are consistent with this account and demonstrate that case complexity, questions of legal conflict, legal change, and the reactions of the legislative and executive branches are all correlated with the decision to CVSG.

Terminal Outcomes

Ultimately, both the CFR and CVSG are detours to a final outcome in a case, which is when the Court formally “decides to decide.” This topic, for understandable reasons, has been the primary focus for agenda-setting scholarship and, as a result, is the longest-running topic in the area. The next sections present two theoretical perspectives used by scholars to understand this important outcome.

Cue Theory

Tanenhaus et al. (1963) conducted the earliest examination of agenda-setting decisions. They theorized that justices use cues, or informational shortcuts, to guide their decision making. They found that the federal government as a petitioning party, dissension among courts or agencies, and cases involving civil liberties issues make a case significantly more likely to be granted review.

Cue theory was a necessary initial step in advancing the research on the Supreme Court’s agenda-setting process, and it ushered in a new line of research on the topic (Brenner, 1979; Provine, 1980). Early longitudinal research not only demonstrated the continual importance of key cues but also demonstrated the significance of less obvious features of a case like inter-circuit conflict and hierarchical conflict within the federal judiciary (Ulmer, 1983, 1984). However, most of this early literature lacked a theoretical reason for why these cues were important and how they all fit together (Provine, 1980).

One of the most important pieces of research to address this deficiency was a 1988 article published by Caldeira and Wright. Their work, which received the Law and Courts Lasting Achievement Award, focuses on interest group involvement in the judicial system by way of agenda-setting amicus briefs. Here, they find that amicus briefs filed both in support of and in opposition to granting review are associated with an increase in the likelihood that the Court will hear the case. This result is theorized to be driven by the signaling value of amicus briefs, which indicates how important the case is beyond those directly involved.

Strategic Approaches

In the late 1990s, judicial politics underwent a shift away from the attitudinal model, which argued that justice’s policy preferences drove their behavior (Segal & Spaeth, 1993, 2002), toward the strategic model. The strategic approach started with the belief that policy preferences mattered, but it incorporated insights from rational choice and also questioned the idea that justices were unconstrained actors (Epstein & Knight, 1998, 2000). As applied to agenda setting, one testable implication was that justices engaged in sophisticated voting, whereby actors voting in a multistage environment anticipate the future consequences of their behavior to avoid suboptimal outcomes. More specifically, why would a justice vote to grant review at the agenda stage only to end up losing at the merits stage? If the strategic account was accurate, then a justice should avoid this type of short-sighted behavior.

Caldeira, Wright, and Zorn (1999) were the first to fully apply the sophisticated voting framework (see Palmer, 1982; Brenner & Krol, 1989; Krol & Brenner, 1990), to the agenda-setting stage of Supreme Court decisions, making use of modern ideological measures and utilizing the full set of cases that petitioned for review rather than a biased selection of only cases decided on the merits. These authors argue that the justices’ decisions on certiorari depend on what they expect the merits outcome will be. In other words, justices are forward looking and will vote to grant review if they believe the decision on the merits will be in their preferred ideological direction. A conservative justice, for example, is more likely to grant review in decision when a majority of his colleagues are also conservative. If his colleagues are, by contrast, liberal, then he is less likely to grant review to avoid harmful policy outcomes. The data support these expectations. When confronted by a liberal lower-court ruling, a conservative justice is roughly 55% more likely to vote to grant review when his colleagues are also conservative than if they are liberal (Caldeira, Wright, & Zorn, 1999, p. 564).

Black and Owens (2009a) expand upon this earlier work in two ways. First, they argue that for justices to strategically pursue their policy goals when deciding to grant review, they must consider not only the possible final merits outcome but also the legal status quo. More specifically, justices consider the current law and how the potential merits outcome would shift said law. If they think the law will move closer to their ideal point, they will grant review; however, if the status quo will move further from their ideal point, they will deny review. Either situation is characterized by a policy-minded vote.

A second added feature of their work comes from the incorporation of legal considerations into a justice’s strategic calculus. Legal considerations, such as the existence of conflict between circuits, were traditionally viewed as factors associated with a heightened likelihood of granting review. They contend that these factors can serve as both opportunities and constraints for strategic, policy-minded justices. That is, when justices are motivated to grant review based on their policy preferences and the legal considerations also compel grant votes, an opportunity arises for justices to freely pursue their goals. However, the presence of these same legal considerations makes it harder for a justice to cast a sophisticated vote to deny. In other words, if a justice prefers to deny review, the presence of one or more of these factors can still compel him to act against his preferences and grant review (see also Sommer [2011] for an application to the calculation of whether an individual justice will author the majority opinion in a case).

Beyond internal factors, a second variant of the strategic account examines how the preferences of external actors shape the justices’ agenda-setting behavior. Stated a bit differently, not only do justices consider how their colleagues will behave if they end up reviewing a decision, they also (potentially) consider how Congress and the President may react to the eventual decision, as well. Although the Court is nominally an independent branch of government, it, as well as the judicial branch in general, depends upon both the legislative and executive branches for support in a number of areas. Congress, for example, controls the Supreme Court’s budget, decides whether to give justices raises (though it cannot, per the Constitution, reduce salaries), and alters the Court’s appellate jurisdiction. But does this power translate into actual agenda-setting influence? The results of research in this area is considerably less clear, with some studies finding evidence of external influence and others not.

On the “yes influence” side of the spectrum, one study finds that when the Court and Congress ideologically differ, and the Court is ideologically heterogeneous and thus unable to produce a unanimous (or near unanimous) decision, the Court is more willing to grant review to cases they can decide on constitutional opposed to statutory grounds (Epstein, Segal, & Victor, 2002). Similarly, Harvey and Friedman (2009) show that the Court will only grant review to constitutional questions of congressional acts under two conditions: First, the Court’s decision must move the new law closer to the Court median’s ideal point. Second, the Court must not fear congressional retribution for their act of judicial review.

Owens (2010) reaches the opposite conclusion: the justices seem unresponsive to the preferences of Congress and the President. To reach this conclusion, he examines justice votes in over 500 petitions submitted to the Court across a span of over 40 years. Such longitudinal breadth is important because it incorporates more variation in the preferences of the key players involved (i.e., the Court, Congress, and the President). Across the gamut of plausible specifications, he finds “little reason to believe that justices are strategic” when it comes to anticipating the preferences of external actors (2010, p. 425). Justices, by his account, confine the scope of their strategic behavior to anticipating how their colleagues will respond.

How, then, can these conflicting findings be reconciled? The “no influence” side ultimately has the more persuasive case. This finding largely stems from the lack of a bark—let alone bite—behind how Congress may threaten the Court. Indeed, it has neither impeached a Supreme Court justice nor, at least since 1869, altered the size of the Court itself. More generally, the Court’s institutional design was created to isolate it from Congress and the ebbs and flows of the majority and popular opinion with lifelong tenure, salaries that cannot be lowered, and as unelected members of the federal government—it should not be surprising that the Court is not influenced by Congress’ preferences when constructing its docket.

Although the evidence is mixed regarding Congress’ impact on the Supreme Court’s agenda, it is conclusive that the executive branch can exert authority over the Court’s agenda, namely through the Justice Department and, especially, the Office of the Solicitor General. Although the OSG is influential throughout the Court’s decision-making process (Black & Owens, 2012a), it wields particular power at the agenda-setting stage. Recall, for example, that the Court can issue a CVSG to solicit the opinion of the Solicitor General about what it should do in a case. And when the OSG answers, the Court listens. To wit, between 2001 and 2004, the Court had a remarkable 93% agreement rate with the OSG when it recommended grant, and an 83% agreement rate when it recommended denial (Thompson & Wachtell, 2009). At the individual justice level, even justices who are predisposed to oppose the OSG’s recommendation on policy grounds (e.g., a liberal justice acting on a recommendation from a Republican-appointed Solicitor General) are still very likely to follow that recommendation (Black & Owens, 2011).

Law Clerks

The Court’s agenda-setting process is a long one with numerous opportunities for systematic—as opposed to serendipitous—factors to influence outcomes and the choices justices makes. Some of these influences include politics, law, and external actors such as interest groups. Ultimately, of course, justices are the decision makers and are responsible for casting the votes that will determine whether a litigant gets one final shot or if their legal journey is over. This focus on the justices, however, belies an important and underappreciated truth: for most justices, in most cases, the vast majority of the work done leading up to the final agenda-setting vote is performed not by the justices but rather by their law clerks.

Though most of the general public would be surprised to learn this, it has not escaped the attention of agenda-setting scholars. Early research posited that law clerks work to meet the needs of their justice and, therefore, would make recommendations to grant or deny review in coordination with what they expect their justices would want (Brenner & Palmer, 1990). Data from Chief Justice Vinson’s private papers are consistent with this hypothesis, although such data also support the notion that the Chief was actually following (i.e., was influenced by) those very same recommendations. During the Vinson Court, Justice Burton had the highest agreement rate with his clerks (Brenner & Palmer, 1990; Palmer & Brenner, 1995), which is theorized to be an outcome of synchronicity—due to the principal agent relationship that individual justices, like Burton, have with their clerks. But back then, the justice-clerk relationships were much different than they are today at the agenda stage, primarily because the cert pool had not been yet established. Clerks were working for their individual justices to relay and recommend their votes on certiorari for each case. Therefore, the only justice this relationship may accurately reflect these research findings today is Justice Alito, who is, as of this writing, the only justice not participating in the cert pool (Liptak, 2008).

More recent research utilizing data after the adoption of the cert pool suggests that clerks still exert influence on justices’ agenda-setting decisions. Although justices are willing to hire law clerks whose personal ideologies differ from their own (Peppers, 2006; Kromphardt, 2014; Bonica et al., 2016), there is good reason to believe that these clerks check their own attitudes at the door. Clerks have incentive to perform well and in accordance with their justice’s views because the consequences for being disloyal or shirking are grave and can severely dampen post-clerkship job opportunities (Black & Boyd, 2012b).

Indeed, recent work suggests that clerks are keenly attuned to the stakes attached to their performance. Because of the sheer volume of petitions, the best prediction for any single petition is that review should not be granted. As a result, suggesting that a case should be granted review is, by definition, an outlier—and a bold one at that. Therefore, newly hired law clerks, by virtue of being less confident and more risk averse, are less likely to make grant recommendations than are those who are at the end of their (typically one-year) tenure. As it turns out, this is exactly the case. One fascinating study showed that a law clerk was less likely to recommend a grant in a case at the beginning of the term than the same clerk was in an otherwise identical case being reviewed at the end of term (Blake, Hacker & Hopwood, 2015).

More generally, existing research identifies a number of factors that influence whether there is agreement between a law clerk’s recommendation and a justice’s eventual agenda-setting vote. The three key factors are (a) the policy preferences of the justice a clerk works for, (b) the recommendation he is making, and (c) the “cert worthiness” of the case. Justices are considerably more likely to follow a clerk’s recommendation to deny review than grant review. When a grant recommendation is made, the likelihood of agreement is conditioned by the extent to which a voting justice is ideologically proximate with the chamber whose clerk made the recommendation. From the perspective of Justice Thomas’ chambers, for example, a grant recommendation from a Chief Justice Robert’s clerk is more likely to be heeded than one coming from a Justice Ginsburg clerk (Black & Boyd, 2012b; Black, Boyd, & Bryan, 2014). Much like justices, whose policy-minded behavior can be constrained by legal aspects of the case, the same is true for the influence of law clerk recommendations. In cases where the legal factors and other case attributes point toward it being an “easy” grant, such a recommendation is consistently followed by justices of all ideological stripes (Black & Boyd, 2012b).

Ultimately, however, the million-dollar question is whether real clerk influence exists. That is, but for the recommendation of a law clerk, would a justice cast the same agenda-setting vote that he cast? A conclusive answer to this question is impossible, as it would require “rerunning” history in a world where law clerks did not exist or, at the very least, made a different recommendation than the one they actually made. What the research does indicate is a substantial level of agreement between recommendation and behavior, even in circumstances when one would not anticipate it. Imagine a case that has an 80% chance of being granted review. Such a case would likely involve circuit conflict and possibly other factors normally associated with cases reviewed by the Court. Even when those factors point toward granting review, if the pool memo recommends “deny,” there is roughly 50% chance that a justice will ignore the case-level factors and instead follow the recommendation of the law clerk (Black, Boyd, & Bryan, 2014).

Moving Forward

For all that existing work has done, there is, as always, more to be done. First, much of the research in agenda setting has been driven by the availability of new and novel data that make systematic analyses possible. Though the tectonic shift in the literature generated by the Blackmun Archive of Epstein et al. is unlikely to be repeated as scholars continue to refine and improve measures for important concepts. New scholars should apply such measures to revisit topics in the agenda-setting literature.

Take, for example, Baird’s important work on the Court’s influence in attracting cases. Her work overturned the conventional wisdom that the Court must be a passive institution, idly waiting for an issue to reach its doors. Instead, she demonstrated that the Court can exert authority not only over the cases they choose, but the pool of potential cases to choose from in future terms by issuing “salient” decisions in a particular area. Work in recent years has, however, significantly expanded the options available to scholars seeking a salience measure. Collins and Cooper (2012), for example, expand upon the path-breaking work of Epstein and Segal (2000) and generate a quasi-continuous measure of case salience (see also Clark, Lax, & Rice, 2015). Other researchers take a different approach and attempt to identify what the justices themselves (as opposed to newspaper editors) think is salient. In this vein, Black, Sorenson, and Johnson (2013) look to how the justices behave during oral argument as an indicator of the justices’ interest in a given case. A logical and interesting extension may, for example, seek to examine how responsive litigants are to case-specific signals sent by the justices.

Second, agenda setting provides a useful window into judicial behavior and a fruitful ground for theory testing. Owens et al. (2015) capitalize on this smartly by looking at how the Supreme Court differentially reviews cases coming from states that elect judges versus those that utilize other selection mechanisms. Their results, which suggest that elected judges are no more (or less) likely to be reviewed by the Court, make an important contribution to the literature on judicial selection. Scholars should continue to use agenda setting as a bridge to other literatures within judicial politics and beyond.

Next, the literature on agenda setting has established that justices are forward-looking when casting their votes. That is, they weigh the policy and legal consequences of granting review versus what would happen if they denied a petition. They are known to strategically audit petitions from the lower courts to maximize their impact on policy. Much less is known, however, about how lower-court judges respond to being audited (or not) by the Court. Do audits have a broader impact on a judge’s behavior? What about judges on the same circuit who were not audited? If a single review of a petition yields additional compliance benefits beyond the instant petition (Klein & Hume, 2003), then this may help explain, in part, the decreasing size of the Court’s discretionary docket. And, given that many circuit judges aspire to be on the Supreme Court (Black & Owens, 2016), there may be good reason to expect them to work to avoid potentially embarrassing review by the High Court.

Stepping back a bit, the agenda-setting process itself has evolved quite significantly over time. Beyond formal statutory changes promulgated by Congress, the Court’s own internal handling of its cases has also changed. The switch from the “dead list” to the “discuss list,” for example, completely reversed the default treatment for a petition. One may wonder how that process has influenced the flow of cases being discussed and subsequently granted review by the Court. In a similar vein, the creation and subsequent expansion of the cert pool was convenient for both justices and their law clerks, but, again, not much is systematically known about how it has changed decision making within the Court.

Finally, even within the day-to-day functioning of the Court, mysteries remain. Votes to “Join 3” constitute a nontrivial proportion of those cast (according to available docket sheets). Under what conditions do justices use them? When one justice casts such a vote, are his colleagues more likely to reciprocate in the future? Does this type of collegial behavior spillover into other areas of the Court’s decision making? Legislators must, out of sheer necessity, logroll to get legislation passed. Decades of research have failed to uncover similar patterns in the judiciary, but that is distinct from saying it does not exist.

As polarization continues to plague Congress, Americans must turn to alternative venues for policy change. The Supreme Court and federal judiciary has been a popular alternative, especially for social change. However, as the size of the Court’s agenda continues to dwindle, research on agenda setting is pertinent to understanding why the Court may opt to decide certain issues, yet decline to hear others, and continue to uncover the layers of decision making that go into the construction of the Court’s agenda.

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Notes:

(1.) All references to the Rules of the Supreme Court will reference the most recently adopted rules. These Rules were adopted April 19, 2013, and went into effect July 1, 2013.

(2.) The overwhelming majority of cases granted review are so-called “paid” cases. These stand in contrast to those submitted informa pauperis (IFP). IFP cases are petitions for certiorari that are filed by indigent parties, in which the Court waives their filing fee, the requirement to prepare a printed booklet, and other rules that may be burdensome to those without resources. A substantial proportion of IFP petitions are submitted pro se, which is to say by the litigant him or herself (i.e., without the aid of an attorney).

(3.) There is no indication that either the timeline or content has been altered since Roberts’ appointment as Chief Justice.

(4.) Interestingly, this is the third iteration of how the Court has managed its case flow. Prior to the 1930s, all cases received a formal, record vote. In the 1930s, as the size of the Court’s docket increased, Chief Justice Hughes created the “dead list” of cases. The dead list catalogued all cases that were considered unworthy of a recorded vote. Any justice could add, but also remove a case from the list. The presumption, however, was that cases were discussion-worthy until proven otherwise. The Court’s current system, which reverses that assumption, was put in place sometime prior to the arrival of Justice Stevens in 1975 (Caldeira & Wright, 1990).

(5.) This data comes from the 2001–2004 terms, where the Court CFR in 839 cases of the 31,408 certiorari petitions filed, 501 of which were IFP cases (Thompson & Wachtell, 2009).