The Supreme Court’s Political Docket: How Ideology and the Chief Justice Control the Court’s Agenda and Shape Law

The Supreme Court is unique among federal courts in that it chooses—using the writ of certiorari—which cases it will decide. Justice Brennan once noted that this discretionary power is “second to none in importance.” This article examines the institutional politics behind this certiorari process. Specifically, it uses an original dataset of Justices’ agenda-setting votes from 1986 to 1993 to show how Justices use the rules that govern certiorari to pursue ideological goals. In addition, and in contrast to existing qualitative accounts, the data suggest some Justices queue off of the Chief Justice’s vote giving the Chief’s vote outsized influence.

After analyzing the effects of politics at certiorari, the article considers possible reforms that might lessen or at least channel the effects of Justices’ policy preferences. To that end, the article offers a range of proposals to reform the certiorari process to promote transparency, to improve efficiency, and to enhance the Court’s legitimacy.