Constraining Certiorari Using Administrative Law Principles

Abstract:     
The U.S. Supreme Court – thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988 – currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases and relying too heavily on law clerks in the certiorari process. Scholars in turn have proposed some fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court’s discretion to set its own agenda is taken away, another area of the law that already has thought long and hard about how to constrain delegated discretion should be consulted: administrative law. Although certiorari and administrative law certainly differ, both involve congressional delegations of discretion to a less accountable body and therefore both raise concerns about accountability, transparency and reasoned decision-making. Accordingly, in thinking about certiorari reform, it makes sense to borrow from some of administrative law’s well-developed lessons about how delegated discretion can be controlled to ensure accountable, transparent, non-arbitrary decision-making. Specifically, after consulting the nondelegation doctrine, reason giving requirements, public participation mechanisms and oversight principles found in administrative law, this Article concludes that vote disclosure requirements and increased public participation stand as promising ways of checking the Court’s currently unconstrained discretion.

Number of Pages in PDF File: 68

Keywords: Supreme Court, Certiorari, Judicial Discretion, Administrative Law, Delegation, Docket Setting

Accepted Paper Series