On Second Thought: An Empirical Analysis of When the Supreme Court Decides Not to Decide

Abstract

Supreme Court Justices have a set of tools that allow them to avoid reaching the merits of a legal dispute even if the Court decides to hear the case by granting a petition for a writ of certiorari. Certain Supreme Court decisions relying on such tools are clear on their face—that is, case dimensions, delimiting the justiciability of a matter, are being evaluated because the Court wants to clarify the viability of the case. This Article looks at other rationales for the Court’s decisions not to rule on the merits after granting a case to the merits docket. In particular, it looks at the strategic nature of such decisions and specifically how not deciding a case can help certain Justices achieve alternative goals. One such goal is minimizing a decision’s impact by removing the case from the Court’s substantive review. A second goal we proffer is deference to Congress’s policymaking power in hopes that Congress will enact policy in accordance with the direction of those Justices’
preferences.

This Article uses a rational choice framework as a tool to understand the two stages in Supreme Court Justices’ analyses of when not to rule on the merits of a decision. In the first stage, the Justices decide whether to examine such requirements. Here, the Justices may account for their own preferences as well as those of other branches of government, of which Congress is the most important. In the second stage, the Justices decide what to do when such concerns are raised. The Justices can either decline to rule on the merits of the case or move forward on the merits and come to a substantive decision notwithstanding these concerns.

This Article’s original dataset proves that the Justices’ preferred outcomes and Congress’s preferences are factors in many of the Justices’ determinations of when and how to raise case dimension concerns. By examining the Rehnquist and Roberts Courts, this Article concludes, all else equal, that Justices are more likely to avoid ruling on the merits in granted cases relating to issues of statutory and constitutional interpretation and when the Justices’ ideology is similar to the ideology of the Senate. This study shows that the Justices’ attempts to end their analyses before reaching the merits vary across Justices and are at least correlated with the relationship between the ideological preferences of Congress and the Court. These results open the door for further investigation as to how the Justices use Article III and related doctrines to achieve their preferred outcomes.

Keywords: U.S. Supreme Court, justiciability, law and social science, ideology, politics, standing, political question doctrine, ripeness, mootness, empirical legal studies

JEL Classification: K40, K41, K49