The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection

In this Article, we offer a fuller jurisprudential analysis of the gatekeeping choices that the Justices make as they set the direction in which the Court will proceed. Using more recent data that we gathered from the docket books of Justices Brennan and Marshall, we show that rule-based and strategic factors, while undeniably important, cannot adequately account for the Justices’ voting behavior at the certiorari stage. Although the Justices consider the very same cases and materials, in light of the same criteria set out in the Court’s rule, they come to quite different conclusions about which cases merit plenary review. Even Justices closely aligned in decisions on the merits often have dramatically different voting records on certiorari. We suggest that other, more jurisprudential considerations also affect the individual Justices’ judgments about the quantity and content of the Court’s proper workload. In particular, we contend that a Justice’s views about what role the Supreme Court should play in the judicial system and American life—including his or her views on the nature of precedent, the importance of uniformity in federal law, and the Court’s appropriate role in effectuating social change—play a central role in shaping his or her decisions about case selection

The Solicitor General\u27s Changing Role in Supreme Court Litigation

Over the last two decades, as the Supreme Court has sharply cut back its case load, the Solicitor General has wielded the tremendous influence that comes with being the Court’s most frequent and successful litigant in new ways. In this Article, the authors examine both the causes and consequences of these changes, which have diminished the Solicitor General’s role at the certiorari stage and expanded it at the merits stage. They find that at the certiorari stage, when the Court is selecting its cases and setting its agenda, the Solicitor General is now seeking certiorari in so few cases—just fifteen per Term—that the Solicitor General is ceding the federal government’s once-substantial influence over the Court’s agenda-setting to more aggressive litigants. At the merits stage, in contrast, the Solicitor General is now participating in over three-quarters of the Court’s cases, and is doing so more frequently as amicus curiae than as a party. The authors address concerns that, with this nearly pervasive involvement, the Solicitor General may have become too intrusive in private litigation or too partisan in cases presenting high-profile, socially controversial issues. They find, however, that solicitors general have acted within their proper constitutional role, largely confining involvement as amicus to cases that directly and substantially affect the federal government’s institutional interests

Setting the Social Agenda: Deciding to Review High-Profile Cases at the Supreme Court

This is the published version

A Wedding Gone Wrong The Rather Worldly Woes of a Rather Wealthy Qādirī Sufi Shaykh. Two 18th Century Documents from the Ottoman Court Records of Ḥamā and Aleppo

A rather intricate legal case took place first in Ḥamā’s and then in Aleppo’s Ottoman Islamic courts around the middle of the 18th century. The setting, the social standing of the individuals involved, and the alleged circumstances of the case all contribute to make clear that this was not just another routine court case. Altogether, the two documents are a good example of the scope and quality of the information preserved in the archives of local courts and they both demonstrate the extent and modes of implementation of Islamic law in a specific Ottoman milieu. The long inventory of personal property in the Aleppo document gives us a good idea of the social status and affluence enjoyed by the plaintiff – a member of the Jīlānī/Qādirī family - and an interesting insight into material culture and what constituted wealth and affluence at the time.