Beyond Defensive Denials: Evidence from the Blackmun Files of a Broader Scope of Strategic Certiorari *
Sommer, Udi, Justice System Journal
The U.S. Supreme Court sets its own agenda. The consequentiality of this decision and the little institutional constraints involved induce justices to select cases strategically. They exercise their gatekeeping capacity with future consequences in mind. Based on original material from the Blackmun Files, this article examines strategic thinking of a broader scope than the type traditionally described in the literature. On top of dispositional outcomes, the strategic behavior analyzed concerns doctrinal output and policy implications. Thus, strategic conduct during certiorari is attached to a broader institutional context that incorporates various goals of individual justices, the collegial game, the other branches, and time. In closing, implications for the constitutional position of the Court are discussed.
The Supreme Court of the United States has a discretionary gatekeeping capacity. The upshots of this prerogative cannot be overestimated. As Justice Brennan put it, the decision on certiorari is "second to none in importance." Thus, it is likely that justices select cases strategically, that is, while thinking about future implications. For instance, the decision to directly address the scope of the Second Amendment and grant certiorari in District of Columbia v. Heller was at least partly motivated by strategic considerations. Strategic behavior in this case was related to the new ideological makeup of the Court following the appointments of Chief Justice Roberts and Associate Justice Alito (Barnes, 2007, inter alia).
While the question of strategic certiorari has been analyzed, the main question in this article is in what ways justices' strategic considerations go beyond the dispositional outcome. More specifically, I examine whether judges, to maximize their influence on both policy and doctrine, consider the future opinion in the case and political implications beyond the Court. At the theory level, the argument puts strategic certiorari in an institutional context that incorporates goals of individual justices, the collégial game, the other branches, and time. At the empirical level, the article describes these strategic behaviors and establishes that they are sufficiently frequent to meaningfully influence case selection. The argument is based on material from the papers of Justice Blackmun, who was appointed to the Court in 1970. Blackmun served under Chief Justice Burger for sixteen years and then continued under Chief Justice Rehnquist for eight more years until retiring in 1994. The article establishes that strategic aspects of case selection were a clear and important consideration in the decision making process in Blackmun's as well as in other chambers. Furthermore, the strategic thinking exhibited by Justice Blackmun and his clerks appears to be in line with recent scholarship on strategic decision making (Epstein and Knight, 1998; Maltzman, Spriggs, and Wahlbeck, 2000; Hammond, Bonneau, and Sheehan, 2005).
Assuming that members of the Court strive to maximize their influence on doctrines, jurisprudence, and policy, I test the existence of new types of strategic behavior and then examine their prevalence. The first category of strategic behavior is related to politics as such. It consists of strategic considerations concerning the politics of appointments, the results of upcoming presidential elections, and the role of the Court in protecting certain groups in American society (e.g., women). In cases in the second category of strategic behavior, justices would decide whether to grant review based on the expected influence of the opinion. This is what I call planned inclusion (doctrines and policies that will appear in the opinion influence the selection of cases) and premeditated avoidance (justices vote to deny to avoid jurisprudential developments they find objectionable). Finally, some dissents from denial indicate that justices think about policy making in the opinion at the time of certiorari. …