Discretionary Dockets

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role.

The Court, we argue, has neither settled on one approach to constitutional adjudication nor applied the different modes in any systematic fashion. We conclude with thoughts about how the Court can better offer guidance through its decisionmaking — if that is what the Court still aspires to do.