Judicial Choice among Cases for Certiorari

Abstract

How does the Supreme Court choose among cases to grant cert? In the context of a model that considers a strategic Supreme Court, a continuum of rule-following lower courts, a set of cases available for revision, and a distribution of future lower court cases, we show that the Court grants cert to the case that will most significantly shape future lower court case outcomes in the direction that the Court prefers. That is, the Court grants cert to the case with maximum salience. If the Court is rather liberal (conservative) then the most salient case is the one that moves the discretionary range of the legal standard as far left (right) as possible. But if the Court is moderate, then the most salient case will be a function of the skewedness of the distribution of ideologies of the lower courts and the likelihood that future cases will fall within the part of the discretionary range that is adjusted if the case is granted cert. Variations take place when the ideology of the Court is moderately liberal, moderately conservative or fully moderate. Extensions of the model allow us to identify the sensitivity of the results to the number of petitions for revision; the variety of legal topics covered by the petitions; and anticipation of whether the Court will confirm or reverse.