Triage in Appellate Courts: Cross-Level Comparison

By Wasby, Stephen L.; Ginn, Martha Humphries | Judicature, March/April 2005 | Go to article overview

Triage in Appellate Courts: Cross-Level Comparison


Wasby, Stephen L., Ginn, Martha Humphries, Judicature


Both the Supreme Court's denial of certiorari and U.S. courts of appeals' non-publication perform the function of helping cope with caseloads. Recognizing and drawing on the parallels may show the value of comparison among courts at different levels and also may facilitate their triage efforts.

There has been a tendency to view the U.S. Supreme Court as unique and therefore not comparable to other federal courts or state high courts. This perspective overemphasizes the differences between the Supreme Court and other courts. Much can be learned if, instead of having studies of the Supreme Court and U.S. courts of appeals proceed on different tracks, we treat them as members of the category "appellate courts" and look for parallels in the way both perform their functions. For example, rather than considering the Supreme Court a law-making court and lower appellate courts error-correcting courts, we should recognize that all appellate courts engage in both types of activities to some degree.

In this exploratory article, we cut across "levels" in the court system to examine appellate courts' methods of coping with their caseloads. We specifically explore parallels between courts of appeals' use of published or unpublished dispositions and the Supreme Court's grant or denial of certiorari.1 It is not our intent to argue perfect parallels between certiorari and publication; we acknowledge that the analogy breaks down at a few places. However, we think it useful to explore aspects in which they are parallel rather than to continue to treat them as unrelated.

The work here is speculative; some elements require further research that we hope others will undertake. Our purpose is to get those who follow the courts to start thinking about parallels between caseload processes in different courts-to think across courts-in order to broaden the perspective through which the courts are viewed. There may also be some practical payoff to this rethinking: the possibility of applying mechanisms used in one type of appellate court to other appellate courts.

Selection of cases

The Supreme Court is thought to be unique because of its ability to select the cases it hears-its discretionary certiorari jurisdiction. However, the absence of mandatory jurisdiction does not serve to distinguish the Supreme Court completely from other appellate courts, which have varying mixes of mandatory and discretionary jurisdiction.

More to the present point, all appellate courts have had to cope with caseload problems, and in doing so have engaged in triage, in which they give full treatment to the most important cases while devoting less extended consideration to more routine cases. For the Supreme Court, triage has involved substituting discretionary certiorari review for appeal as of right, thus building triage into its everyday work. As primarily mandatory jurisdiction courts, the courts of appeals have had to develop some other method of triage, and the principal mode has become use of "unpublished," non-precedential dispositions.

The comment that use of shortcuts, including unpublished dispositions, makes the U.S. courts of appeals "the new certiorari courts"2 suggests the parallel between these two triage methods. We think the frequency with which the Supreme Court justices deny certiorari and the courts of appeals' use of "unpublished" dispositions are sufficiently similar to make it reasonable to compare them because they account for the great bulk of dispositions in the respective courts. Certiorari is now granted in less than 2 percent of all filings and less than 5 percent of "paid" petitions, while unpublished dispositions are now used in more than three-fourths of all courts of appeals cases, with the portion of granted cert petitions falling and the portion of published court of appeals rulings declining over time.

Within the expectation that it is to speak to a wide range of subject matters, the Supreme Court must decide how to allocate its "discretionary space. …

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