Abstract
Courts sometimes face cases that may result in adverse post-judgment official or public reactions. Such real-world repercussions—e.g., open defiance by public officials—can be more costly for the court than the benefit of hearing and deciding the case. In these situations the court may be better off not taking the case from the outset. This paper examines how courts deal with such cases when they can avoid adjudication—discretionary dockets. Using a stylized screening model, the paper examines the implications of such discretion. In particular, it shows that some undesired real-world outcomes are inevitable; and that broad control over their dockets should lead judges to take fewer cases in which the government is involved. Further, the paper discusses this logic from a comparative design perspective. The two prevalent models of judicial review, the American and the European, seem to take opposing stances on discretionary review; however, both narrow supreme courts’ control over their dockets, either by directly limiting their discretionary jurisdiction or by decentralizing judicial review.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
The literature that discusses the strategies behind the selection process in the U.S. Supreme Court, for instance, tends to focus on the power of the minority of the Court to compel the majority to adjudicate a case (Perry 1991, 198–212).
There may be decisions that bring seemingly harsh outcomes, but are nonetheless worth pursuing from courts’ cost-benefit calculations. Possible examples are decisions that lead to beneficial reputational gains, which only develop in the long run. This paper focuses on the specific group of cases that do not pass this broad real-world cost-benefit test.
The Court eventually declined to resolve the case (Naim v. Naim, 350 U.S. 985 [1956]).
While there might be atypical cases, in which harmful consequences only follow a decision that preserves the status quo, one can easily extend the analysis to account for this group of cases. Likewise, one can extend the model to cases in which the petitioning party wants to keep the status quo—e.g., where the government appeals.
The court in the model represents a single decision-maker—I do not discuss circumstances in which a minority of the court can force the remaining judges to take cases.
D can also reflect the benefit from implementing judges’ ideology, and in this case the magnitude of D depends on the outcome of the case. I briefly discuss this situation in Sect. 3.6, showing that the inclusion of ideological gains should not affect the basic, general analysis.
Examples include: a legislative reaction in the form of an unfavorable statute; legitimacy loss due to pervasive non-compliance; political backlash against the judiciary.
There are, of course, many real-world variations to this simple two-stage description. One can think, for example, of several intermediate phases, such as dismissing certiorari as improvidently granted and dismissing on jurisdictional grounds. The general idea, though, remains the same: the later the stage is, the more information the court has, but the more costly dismissals become.
The population of cases is normalized to one.
The court adjudicates the hostile-reaction type of cases only when petitioners lose. The win rate is thus \(\frac{p(1 - h)}{p(1 - h) + (1 - p)} = p\frac{1 - h}{1 - ph}\), which is necessarily lower than the general win rate in the population p.
That the win rate after the selection process is lower than p stems from the assumption that, conditional on the petitioner winning the case h i and p i are not correlated. Hence, \(E(p_{i} ,p_{i} < \frac{D}{{Kh_{i} }}) \le E(p_{i} ) = p\), for any h i . The average win rate within a group of selected cases \(E(p_{i} ,p_{i} < \frac{D}{{Kh_{i} }})\) can equal the average win rate in the population p only when h i is sufficiently small, i.e., for the group of cases in which real-world hostility is unlikely.
This threshold for taking cases must be lower than the scenario in which the court does not know h i for sure: \(\frac{D}{K} < \frac{D}{{h_{i} K}}\).
At the time, “traditional legal sources … pointed more toward reaffirming [the constitutionality of school segregation].” Indeed, according to some estimates the initial vote at the Court was against invalidating school segregation (Klarman 2004, p. 300). Two years later, with a new Chief Justice, Brown ended in a decision against school segregation.
The motivation for such manipulation does not exist if the court reveals that the government wins, for in this case there is no risk of hostile real-world consequences.
I assume here constant manipulation costs M for all cases. In reality, of course, each case can have its own manipulation costs M i . With such variation, the results are qualitatively the same—in some cases manipulation will be valuable, and in others it will be too costly; all in all, manipulation enables courts to avoid some hostile reactions and hear more cases. As a side note, it seems plausible to expect manipulation costs to be correlated with the merits of the petitioner’s case—the stronger the case for the petitioner (higher p i ), the harder it is to reach a different outcome (larger M i ). This correlation should mitigate the effects of manipulations on the selection process.
Note that this strategy does not completely eliminate perverse real-world outcomes. Some cases would appear to be of a peaceful type and hence are not manipulated, as h i is below the manipulation threshold \(\frac{M}{K}\). Within this group, some cases will turn out to be hostile reaction cases.
More precisely, cases with low h i , below the manipulation threshold, will be selected for adjudication where D-p i h i K > 0, or when \(p_{i} < \frac{D}{{Kh_{i} }}\) (this is the previous, second-best cutoff). For cases with high h i , above the manipulation threshold, the court expects to gain D if it turns out that the petitioner loses; and D − M in case the petitioner wins (above the manipulation threshold all winning cases are manipulated). Hence, the expected utility from hearing a case above the manipulation cutoff is (1 − p i )D + p i (D − M), resulting in the threshold \(p_{i} < \frac{D}{M}\) for taking cases. This cutoff is higher than in the second-best scenario—by the definition of the manipulation cutoff, for manipulated cases h i K > M; hence, for the manipulated cases \(\frac{D}{{h_{i} K}} < \frac{D}{M}\). Therefore, with the introduction of the capacity to manipulate, courts can select for adjudication additional cases, in which the petitioner is more likely to win.
For similar reasons, anti-government judges will be less likely to manipulate winning decisions (and vice versa).
Another way to present this argument is to consider the relative force of ideological and institutional gains. Let \(\alpha = \frac{{D_{2} }}{{D_{1} }}\). Anti- and pro- government judges will take cases when \(p_{i} ({{h_{i} k} \mathord{\left/ {\vphantom {{h_{i} k} {D_{1} }}} \right. \kern-0pt} {D_{1} }} - \alpha ) < 1\) and \(p_{i} ({{h_{i} k} \mathord{\left/ {\vphantom {{h_{i} k} {D_{1} }}} \right. \kern-0pt} {D_{1} }} + \alpha ) < 1\) respectively. Where α is sufficiently large the first conditions is always met (meaning that anti-government judges will take all cases) and the second condition is never met (pro-government judges will never take cases).
In line with these predictions prior empirical evidence indicates that, due to the cert process, “the Court’s docket disproportionately comprises cases wherein the Court will face little congressional constraint” (Harvey and Friedman 2009, pp. 575–76).
I abstract away from the possible influence the selection process has on litigants’ incentives to bring cases. To the extent litigants do take these considerations into account and choose to bring fewer cases, the effect of prospective real-world consequences on courts’ behavior and actual win rates is diluted. In that case, however, the practiced law is still biased in favor of defendants.
The capacity to manipulate should in principle amplify the problem, as the court can manipulate some winning cases that made it to adjudication.
Of course, the Court no longer avoids this area (Obergefell v. Hodges, 135 S.Ct. 2584 [2015]).
As noted above, as long as courts lack complete information regarding the propensity of the case to trigger hostile consequences, the capacity to manipulate the merits cannot eliminate perverse outcomes either.
To the extent courts can manipulate the outcome they are able to save some potentially hostile real-world effects through more manipulations. In this case, however, the decisions are biased in favor of the defendants.
The model set dismissals costs to zero.
References
Amar, V. D. et al. to Hon. Joseph R. Biden (Vice President of the United States) et al., February 9, 2009.
Balkin, J. M., & Levinson, S. (2001). Understanding the constitutional revolution. Virginia Law Review, 87, 1045–1109.
Bateup, C. (2009). Reassessing the dialogic possibilities of weak-form bills of rights. Hastings International and Comparative Law Journal, 32, 529–599.
Baum, L. (2010). The Supreme Court (10th ed.). Washington, DC: CQ Press.
Bickel, A. M. (1986). The least dangerous branch: The Supreme Court at the bar of politics (2d ed.). New Haven, CT: Yale University Press.
Black, R. C., & Owens, R. J. (2009). Agenda setting in the Supreme Court: The collision of policy and jurisprudence. The Journal of Politics, 71, 1065–1075.
Bonneau, C. W., et al. (2007). Agenda control, the media justice, and the majority opinion on the U.S. Supreme Court. American Journal of Political Science, 51, 890–905.
Caldeira, G. A., & Wright, J. R. (1988). Organized interests and Agenda setting in the U.S. Supreme Court. The American Political Science Review, 82, 1109–1127.
Carrubba, C. J. (2005). Courts and compliance in international regulatory regimes. Journal of Politics, 67, 669–689.
Carrubba, C. J., & Zorn, C. (2010). Executive discretion, judicial decision making, and separation of powers in the United States. Journal of Politics, 72, 812–824.
Clark, T. S. (2011). The limits of judicial independence. New York: Cambridge University Press.
Clark, T. S., & Whittington, K. E. (2011). Ideology, partisanship, and judicial review of acts of Congress, 1789–2006. Unpublished manuscript. Emory University, Department of Political Science, and Princeton University, Department of Politics, January.
Cohen, L. R., & Spitzer, M. L. (2000). The Government litigant advantage: Implications for the law. Florida State University Law Review, 28, 391–425.
Cordray, M. M., & Cordray, R. (2004). The philosophy of certiorari: Jurisprudential considerations in Supreme Court case selection. Washington University Law Quarterly, 82, 389–452.
Daughety, A. F., & Reinganum, J. F. (2006). Speaking up: A model of judicial dissent and discretionary review. Supreme Court Economic Review, 14, 1–41.
Dickinson, E. D. (1956). The law of nations as National Law: “Political Questions”. University of Pennsylvania Law Review, 104, 451–493.
Epstein, L., & Knight, J. (1999). Mapping out the strategic terrain: The informational role of Amici Curiae. In C. W. Clayton & H. Gillman (Eds.), Supreme Court decision-making: New institutionalist approaches (pp. 215–235). Chicago: University of Chicago Press.
Epstein, L., Segal, J. A., & Victor, J. N. (2002). Dynamic agenda-setting on the United States Supreme Court: An empirical assessment. Harvard Journal on Legislation, 39, 395–433.
Eskridge, W. N, Jr. (1991). Overriding Supreme Court statutory interpretation decisions. Yale Law Journal, 101, 331–455.
Ferreres Comella, V. (2004). The consequences of centralizing judicial review in a Special Court: Some thoughts on judicial activism. Texas Law Review, 82, 1705–1736.
Fiss, O. M. (1983). The bureaucratization of the judiciary. Yale Law Journal, 92, 1442–1468.
Friedman, B. (2005). The politics of judicial review. Texas Law Review, 84, 257–337.
Goldsmith, J., & Levinson, D. (2009). Law for states: International law, constitutional law, public law. Harvard Law Review, 122, 1791–1868.
Hansford, T. G. (2004). Information provision, organizational constraints, and the decision to submit an amicus curiae brief in a U.S. Supreme Court case. Political Research Quarterly, 57, 219–230.
Harvey, A., & Friedman, B. (2009). Ducking trouble: Congressionally induced selection bias in the Supreme Court’s agenda. Journal of Politics, 71, 574–592.
Kastellec, J. P., & Lax, J. R. (2008). Case selection and the study of judicial politics. Journal of Empirical Legal Studies, 5, 407–446.
Klarman, M. J. (2001). How great were the “Great” Marshall Court Decisions? Virginia Law Review, 87, 1111–1184.
Klarman, M. J. (2004). From Jim Crow to civil rights: The Supreme Court and the struggle for racial equality. Oxford: Oxford University Press.
Langer, L. (2002). Judicial review in state Supreme Courts. Albany: State University of New York Press.
Law, D. S. (2009). A theory of judicial power and judicial review. Georgetown Law Journal, 97, 723–801.
Lijphart, A. (1999). Patterns of democracy: Government forms and performance in thirty-six countries. New Haven, CT.: Yale University Press.
Maltzman, F., Spriggs, J. F. I. I., & Wahlbeck, P. J. (1999). Strategy and judicial choice: New institutionalist approaches to Supreme Court decision-making. In C. W. Clayton & H. Gillman (Eds.), Supreme Court decision-making: New institutionalist approaches (pp. 43–64). Chicago: University of Chicago Press.
Michelman, F. I. (2011). The interplay of constitutional and ordinary jurisdiction. In T. Ginsburg & R. Dixon (Eds.), Comparative constitutional law (pp. 278–297). Cheltenham, UK: Edward Elgar.
Nardini, W. J. (1999). Passive activism and the limits of judicial self-restraint: Lessons for America from the Italian Constitutional Court. Seton Hall Law Review, 30, 1–63.
New York Times Editorial Board. (2015). Illegal defiance on same-sex marriage. New York: New York Times.
Owens, R. J. (2010). The separation of powers and Supreme Court agenda setting. American Journal of Political Science, 54, 412–427.
Perry, H. W, Jr. (1991). Deciding to decide: Agenda setting in the United States Supreme Court. Cambridge, MA: Harvard University Press.
Provine, D. M. (1980). Case selection in the United States Supreme Court. Chicago: University of Chicago Press.
Rosenberg, G. N. (1992). Judicial independence and the reality of political power. Review of Politics, 54, 369–398.
Scheppele, K. L. (2006). A comparative view of the Chief Justice’s role. University of Pennsylvania Law Review, 154, 1757–1851.
Sommer, U. (2010). Beyond defensive denials: Evidence from the Blackmun Files for a Broader Scope of strategic certiorari. Justice System Journal, 31, 316–341.
Spriggs, I. I., & James, F. (1997). Explaining federal bureaucratic compliance with Supreme Court opinions. Political Research Quarterly, 50, 567–593.
Staton, J. K., & Vanberg, G. (2008). The value of vagueness: Delegation, defiance, and judicial opinions. American Journal of Political Science, 52, 504–519.
Stephenson, M. C. (2003). “When the devil turns…”: The political foundations of independent judicial review. Journal of Legal Studies, 32, 59–89.
Stephenson, M. C. (2009). Legal realism for economists. Journal of Economic Perspectives, 23, 191–211.
Stone Sweet, A. (2000). Governing with Judges: Constitutional politics in Europe. Oxford: Oxford University Press.
Stone Sweet, A. (2007). The politics of constitutional review in France and Europe. International Journal of Constitutional Law, 5, 69–92.
Sunstein, C. R. (2007). If people would be outraged by their rulings, should judges care? Stanford Law Review, 60, 155–212.
Vanberg, G. (2006). John Marshall has made his decision: Implementation, transparency, and public support. In J. Bond, R. Fleming, & J. R. Rogers (Eds.), Institutional games and the Supreme Court (pp. 69–96). Charlottesville: University of Virginia Press.
Acknowledgments
I am grateful to Adam Chilton, Alon Cohen, Shai Dothan, Yehonatan Givati, Barak Medina, Frank Michelman, Adam Shinar, Jennifer Shkabatur, Matthew Stephenson, Mark Tushnet, Omri Yadlin, and participants in the American, Canadian, and Italian Law and Economics Associations Annual Meetings for helpful discussions and comments.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Lavie, S. Discretionary review and undesired cases. Eur J Law Econ 44, 265–285 (2017). https://doi.org/10.1007/s10657-015-9522-z
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10657-015-9522-z