Questioning Certiorari: Some Reflections Seventy-Five Years after the Judges' Bill

Abstract

We tend to take for granted that the United States Supreme Court has the discretionary power, through its use of the writ of certiorari, to select the cases it wishes to decide. The Court, however, has not always possessed this discretion. Professor Hartnett traces the history of certiorari in the Court, paying particular attention to the unprecedented efforts of Chief Justice William Howard Taft to promote the landmark Judges' Bill of 1925, and the uncritical deference to the Court shown by Congress in enacting it. After describing ways in which the Court asserted even broader discretion than Congress provided, Professor Hartnett questions whether certiorari is consistent with the traditional conceptions of judicial review, the nature of judicial power, and the rule of law. While questioning certiorari, he emphasizes its importance not only in encouraging Supreme Court Justices to think of themselves as final arbiters of controversial questions, but also in shaping substantive constitutional law.