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the Judiciary Act of 1925, also known as the Judges’ Bill, a large majority of the Court’s mandatory jurisdiction was repealed.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.

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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.

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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

Decision to Review

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.