The Supreme Court and the DIG: An Empirical and Institutional Analysis

Abstract:     
Almost all of the Supreme Court's cases reach its docket through discretionary grants of writs of certiorari. Sometimes the Court reverses course and dismisses the writ of certiorari as improvidently granted, or DIGs the case. The Court's use of DIGs raises a set of intellectually challenging and interrelated empirical and jurisprudential issues that have received relatively little attention in the scholarly literature. This article fills that gap in several ways. First, it comprehensively documents the cases the Court has DIGed in the Warren, Burger and Rehnquist Courts (1954 through 2004 Terms). It then considers related empirical issues, including whether these cases share characteristics, how often the Court collectively or through the opinions of individual Justices justifies, or criticizes, the DIG, and how often the issue raised in a DIGed case returns to the Court in subsequent litigation.

The article then revisits several jurisprudential issues that have been the subject of some debate on the Court itself and in the scholarly literature. Chief among these is how DIGs potentially undermine the long-accepted norm that only four votes are necessary to grant certiorari. The conventional though not universally accepted response is that to support the Rule of Four, at least six votes should be necessary to DIG a case. Support for this position on the Court is strong though not absolute, and the article explores why the Rule of Six for DIGs has enjoyed robust if not ironclad support. The article then turns to the reasons that ought to justify a decision to DIG, and whether the Court should issue opinions explaining the DIG. In over half of the cases, the Court has not issued such opinions, either collectively or through individual Justices. The article closes with an examination of whether DIGs should be conceptualized as an example of strategic behavior by the Justices, and concludes that in most instances that characterization is not warranted.

Number of Pages in PDF File: 59

Keywords: Supreme Court, DIG, Federal Courts

JEL Classification: K40, K41

Accepted Paper Series