Is the Supreme Court's Virtually Complete Discretion in Certiorari Decisions as Afforded by Congress in the Supreme Court Case Selections Act of 1988 Ethical, and What Potential Ethical Ramifications Stem from Such Control
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Is the Supreme Court's Virtually Complete
Discretion in Certiorari Decisions as Afforded by
Congress in the Supreme Court Case Selections Act
of 1988 Ethical, and What Potential Ethical
Ramifications Stem from Such Control?
IEGAN REILLY*
INTRODUCTION
An inordinate number of petitions for certiorari-or cert-are submitted to
the United States Supreme Court for a limited, and continuously shrinking,
docket.1 There are proposals for an ethical standard to be imposed on the Justices
of the Supreme Court, and the public and legal scholars alike have criticized
some conduct of Justices. An area in which both criticism and ethical questions
come into play is that of the large discretion afforded the Court by the Supreme
Court Case Selections Act of 1988 (the 1988 Act). The Justices of the Supreme
Court have virtually unlimited discretion in choosing the Court's docket. As the
Supreme Court's Rule 10 notes, review on a writ of certiorari is not a matter of
right, but of judicial discretion.,2 Such discretion can lead to what is often
referred to as agenda setting by the Court,3 which may be detrimental to society
and may ignore other pertinent issues and questions of law. Some petitions may
be denied in order to let the affected issues percolate, or continue to be fleshed
out, in lower courts. However, that same reasoning may be a facade to cover a
type of procrastination by the Court.
This discretion may also call into question the motivation behind the Justices'
grants and denials of certiorari, along with the implications of which cases the
Court decides to hear or not hear. While the Court was overloaded with writs of
certiorari prior to the 1988 Act, should Congress have given the Supreme Court
virtually unfettered discretion in choosing its docket? Further, giving the Court
total control in choosing which cases come before it can lead to issues in other
* J.D., Georgetown University Law Center (expected May 2017); B.A., Quinnipiac University (2013).
© 2016, Megan Reilly.
1. SUPREME COURT JOURNAL, http://www.supremecourt.gov/orders/journal/jnl14.pdf [perma.cc/MKJ2-
F6ZN] (last visited Feb. 5, 2016).
2. SuP. CT. R. 10.
3. Lee Epstein et al., Dynamic Agenda-Setting on the United States Supreme Court: An Empirical
Assessment, 39 HARV. J. ON LEGIS. 395, 399 n.16 (2002) (using the term agenda setting to describe how the
branches of government go about the task of determining which of the issues on the 'public' agenda (which
contains all the issues of concern to society) they will schedule 'for active and serious consideration' ).
1299](ViewImageLocal?handle=hein.journals/geojlege29&div=58&collection=&method=preview&ext=.png&size=3)
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