The Lottery Docket

By Epps, Daniel; Ortman, William | Michigan Law Review, March 2018 | Go to article overview

The Lottery Docket


Epps, Daniel, Ortman, William, Michigan Law Review


INTRODUCTION

The Supreme Court today has nearly boundless power to decide which cases it will hear. This was not always so. Until 1891, litigants in many classes of cases could appeal to the Supreme Court as a matter of right.1 As late as 1988, the Supreme Court was obligated to hear any case in which a federal court invalidated a state or federal statute on constitutional grounds.2 But for almost thirty years, with the expansion of certiorari jurisdiction, the Court's power to set its own agenda has been nearly limitless.3 By rule and custom, the Court exercises its discretion by selecting cases that are important, in a narrow sense of that term. Most commonly, the Court deems cases worth hearing if they turn on questions of law that divide the lower courts.4

Critiques of the Court's agenda-selection practices have mounted in recent years. Critics complain that the Court hears too few cases,5 that it ignores particular areas of law,6 and that its docket has been "captured" by an elite Supreme Court bar.7 Few, however, question certiorari's basic premise-that only legally important matters deserve the Court's attention. All seem to agree that the Supreme Court should devote itself to resolving the important cases; the quarrel concerns how the Court should identify which cases are important, and how many of those it should hear each year.

This Article questions the premise that only "important" cases deserve the Court's attention. We argue that the legal system would benefit if, every Term, the Supreme Court were forced to decide some unquestionably unimportant cases-some run-of-the-mill appeals dealing with the kinds of ordinary and seemingly inconsequential legal questions that the lower courts resolve every day. Specifically, we propose that the Court-or Congress, by statute-supplement the traditional certiorari docket with a small number of cases randomly selected from final judgments of the circuit courts.8 This proposal would, unquestionably, mean that the Court would end up devoting time to some seemingly trivial cases. But though the Supreme Court's attention is a scarce resource, spending some of it this way could provide surprising benefits. Getting the Supreme Court to hear a few more ostensibly unimportant cases could help advance deeply important goals.

The argument proceeds as follows. In Part I, we begin with some background on the history of the Supreme Court's jurisdiction. We then explain the Court's current certiorari process. The Court uses a set of proxies- principally, the existence of a circuit split-to identify legally important cases in which to grant certiorari.9 This approach has obvious advantages. Most critically, it enables the Court to unify federal law by resolving questions that have divided the lower courts.10

But this approach introduces pathologies as well-for the Court, the judiciary, and the development of federal law. First, because the justices hear only "important" cases, they are isolated from the day-to-day work of the lower federal courts in ordinary, "unimportant" cases. This means that the justices are systemically deprived of information about how statutes, regulations, and even their own decisions play out in the mine-run of cases.11 Second, when a circuit court decides a legally unimportant case-that is, a fact-bound case or a case not plausibly implicating a circuit split-it knows that the chance of Supreme Court review is practically nil. In such cases (which, we suspect, constitute the vast majority) the circuit court lacks the accountability that traditional models of judicial hierarchy-not to mention sound institutional design-presuppose.12 Third, the existence of a circuit split is only a proxy for legal importance, not a measure of it, and is thus inevitably imperfect. The Court's reliance on circuit splits to recognize legal importance misfires in systematic and predictable ways. In other words, while many, or even most, legal issues selected through the certiorari process are important, not all important legal issues are selected by certiorari. …

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