Gaming Certiorari

Abstract

Just how “supreme” is the Supreme Court? By most accounts, the Supreme Court sits atop of the nation’s judicial hierarchy and—at least among judges—has the last word on what the law means. Yet this conventional wisdom overlooks something important: the Supreme Court’s ability to “say what the law is” is limited both by the cases presented to it and the manner of their presentation. This means that the Supreme Court’s supremacy in a sense depends on how lower courts tee cases up for the Justices, which in turns means that lower court judges—acting strategically—can influence which cases the Supreme Court decides. By understanding how the certiorari process works, lower court judges can reverse engineer their decisions to make certiorari more or less attractive for the Justices. It is more difficult, for example, for the Justices to review decisions with cursory analysis, fact-bound rationales, or alternative holdings, and these or similar techniques are often available to a lower court seeking to avoid the Supreme Court’s attention.

This Article focuses on lower court decisions that have been designed to evade or attract Supreme Court review. First, we offer a game theory model of the certiorari process to demonstrate how lower courts can manipulate certiorari. Second, using that model, we examine the emergence and operation of the Supreme Court’s so-called “shadow docket,” which—via summary reversal—allows the Supreme Court to reverse a lower court’s decision without expending the costs ordinarily associated with certiorari, and so can be understood as a tool to prevent some forms of lower court manipulation. Third, we explore the doctrinal and normative implications of gaming certiorari, with particular focus on the externalities that it creates. Finally, we offer a menu of admittedly imperfect options to address efforts to game certiorari. Ultimately, the purpose of this Article is not to solve the problem of gaming certiorari, but instead to present a more nuanced understanding of the judiciary as a whole.

Keywords: Supreme Court, certiorari, game theory, review, shadow docket, transaction costs