Certiorari Transparency

Abstract

Amid increasing controversy over the Supreme Court’s amassing of power, rejection of precedent, reliance on the shadow docket, and Justices’ undisclosed acceptance of lavish gifts, legal scholars, commentators, and politicians have called for bold and far-reaching reforms to the Court, including term limits for Justices, stripping the Court of jurisdiction in certain cases, and adding Justices to the Court. This Article proposes a more subtle reform to the Court’s proceedings: the Court should make its certiorari determinations, in which it decides which cases to take up and review, public. Currently, the Court exercises near-complete discretion over the cases it decides to take up. Its reasons for granting certiorari are entirely unknown. Justices’ votes on these determinations, and memoranda on whether to grant or deny certiorari, are almost never public until a Justice’s papers are made accessible to the public, usually after their retirement or death. We propose that Justices’ certiorari votes and the Court’s certiorari memos for all cases should become part of the public record and become available after the Court denies certiorari or issues a decision and opinion in the case.

The potential benefits of such a simple reform are myriad. Publicizing Justices’ votes on certiorari determinations puts these decisions in the public eye—subjecting Justices to critiques for inconsistency and poor judgment where relevant. Publicizing the Court’s certiorari memos may reveal what the Court (or certain Justices) prioritize in determining whether a case is cert-worthy—revealing information about institutional priorities and providing valuable information to advocates who wish their dispute to be one of the increasingly miniscule number of cases on the Court’s merits docket each year. More fundamentally, increased transparency in the Court’s case selection process provides much needed insight into the Court’s motivations and exercise of discretion in shaping its docket—information that may bolster other reform proposals. Certiorari transparency opens the Court’s extensive discretion in case selection to public scrutiny and critique. It is likely to appeal to those on both the right and left, and unlike other reforms (like adding Justices or jurisdiction-stripping), it is not tied to any political party or policy outcomes. Additionally, the Court itself may implement this proposal, making it more feasible than alternatives that would require the passage of legislation or constitutional amendments.

If an independent judiciary ensures respect for the law, the judiciary should also demonstrate that respect. The way the Court wields the judicial power can be a force for greater transparency and accountability, rather than exercises of power for power’s sake that ultimately undermine the legitimacy of the judicial branch. Much of the criticism of the Court arises from the way it has conducted its business. Greater transparency in the certiorari process may lead to greater public understanding of the Court and promote civic engagement with its work.

Keywords: United States Supreme Court, court reform, certiorari, transparency, candor, legitimacy, judicial restraint, judicial discretion

JEL Classification: K10