Hostname: page-component-7479d7b7d-k7p5g Total loading time: 0 Render date: 2024-07-10T20:27:56.588Z Has data issue: false hasContentIssue false
  • English
  • Français

The Discuss List: Agenda Building in the Supreme Court

Published online by Cambridge University Press:  01 July 2024

Gregory A. Caldeira  and
John R. Wright
Get access Rights & Permissions [Opens in a new window]

Abstract

Each term 4,000 or more cases arrive at the doorstep of the Clerk of the Supreme Court of the United States. The Court narrows the field of decision from all possible choices to a smaller set of the most plausible ones; in a typical term, the Conference places 20 to 30 percent (around 500) of the cases filed on its “discuss list,” only 150 or so of which will be selected for plenary review. Here we investigate the composition, sources, and implications of the Court's discuss list. What criteria do the justices use in creating the list of cases for discussion in conference? Do these criteria differ from those ultimately applied in the decision to grant or deny a writ of certiorari? What, if any, implications does the operation of the discuss list hold for the composition of the agenda and the outcome of decisions on the merits in the Supreme Court?

We test two chief sets of hypotheses: (1) the justices weigh the various formal and informal criteria differently across the two stages of agenda building, and (2) despite differences in weighting, the justices rely on briefs amicus curiae as well as ideological predispositions to help them both to identify logical candidates for discussion and to decide whether to grant certiorari. We explain the variation in the weighting of the criteria as being largely due to the cost and accuracy of information and the different risk of errors during the two phases of choice.

Type
Research Article
Information
Law & Society Review , Volume 24 , Issue 3 , 1990 , pp. 807 - 836
Copyright
Copyright © 1990 The Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

This is a revision of a paper we presented at the 1988 annual meetings of the American Political Science Association, Washington, DC. We appreciate the research assistance of Peter Berryman, Kevin McGuire, John Felice, Jodi Govern, and William Johnson. Donald Chisholm of UCLA and Lawrence Baum of Ohio State commented on and helped us improve earlier versions of this article. The staff of the Manuscript Division at the Library of Congress helped us find our way around the papers of Chief Justice Earl Warren and Justices William Brennan, Harlan F. Stone, and Harold H. Burton. Grant No. SES 86-07291 from the Program in Law and Social Science of the National Science Foundation made the research reported here possible.

References

ALSUP, William H. (1974) “A Policy Assessment of the National Court of Appeals,” 25 Hastings Law Journal 1313.Google Scholar
ARMSTRONG, Virginia, and Charles A., JOHNSON (1982) “Certiorari Decision Making by the Warren and Burger Courts: Is Cue Theory Time Bound?” 15 Polity 141.Google Scholar
BAKER, Stewart (1984) “A Practical Guide to Certiorari,” 33 Catholic University Law Review 611.Google Scholar
BAUM, Lawrence A. (1977) “Policy Goals in Judicial Gate-keeping: A Proximity Model of Discretionary Jurisdiction,” 21 American Journal of Political Science 13.Google Scholar
BRADLEY, Robert, and Paul, GARDNER (1985) “Underdogs, Upperdogs, and the Use of the Amicus Brief: Trends and Explanations,” 10 Justice System Journal 78.Google Scholar
BRENNAN, William J. Jr. (1973) “The National Court of Appeals: Another Dissent,” 40 University of Chicago Law Review 473.Google Scholar
CALDEIRA, Gregory A., and John R., WRIGHT (1990) “Amici Curiae in the Supreme Court: Who Participates, When, and How Much?” Journal of Politics.CrossRefGoogle Scholar
CALDEIRA, Gregory A., and John R., WRIGHT (1989a) “Parties, Direct Representatives, and Agenda-setting in the Supreme Court.” Prepared for delivery at Midwest Political Science Association Annual Meeting.Google Scholar
CALDEIRA, Gregory A., and John R., WRIGHT (1989b) “Why Do Organized Interests Participate as Amici Curiae in the Supreme Court?” Prepared for delivery at Law and Society Association Annual Meeting.Google Scholar
CALDEIRA, Gregory A., and John R., WRIGHT (1988) “Organized Interests and Agenda-setting in the U. S. Supreme Court,” 82 American Political Science Review 1109.Google Scholar
CAPLAN, Lincoln (1987) The Tenth Justice. New York: Alfred A. Knopf.Google Scholar
DANELSKI, David J. (1960) “The Influence of the Chief Justice in the Decisional Process of the Supreme Court.” Prepared for delivery at American Political Science Association Annual Meeting.Google Scholar
DANELSKI, David J., and Joseph S., TULCHIN (1973) The Autobiographical Notes of Charles Evans Hughes. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
ENNIS, Bruce J. (1984) “Effective Amicus Briefs,” 33 Catholic University Law Review 603.Google Scholar
EPSTEIN, Lee (1985) Conservatives in Court. Knoxville: University of Tennessee Press.Google Scholar
ESTREICHER, Samuel, and John, SEXTON (1986) Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process. New Haven, CT: Yale University Press.Google Scholar
FEENEY, Floyd (1975) “Conflicts Involving Federal Law: A Review of Cases Presented to the Supreme Court,” in Structure and Internal Procedures: Recommendations for Change. Washington, DC: Government Printing Office.Google Scholar
FELDMAN, Martha S., and James G., MARCH (1981) “Information in Organizations as Signal and Symbol,” 26 Administrative Science Quarterly 171.Google Scholar
GALANTER, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Review 95.Google Scholar
GELLER, Kenneth S., and Roy T., ENGLERT Jr. (1990) “So Many Cases, So Little Time,” Legal Times, July 23, pp. 523, 535.Google Scholar
HELLMAN, Arthur D. (1985) “Case Selection in the Burger Court: A Preliminary Analysis,” 60 Notre Dame Law Review 947.Google Scholar
HELLMAN, Arthur D. (1983a) “Error Correction, Lawmaking, and the Supreme Court's Exercise of Discretionary Review,” 44 University of Pittsburgh Law Review 795.Google Scholar
HELLMAN, Arthur D. (1983b) “The Supreme Court, the National Law and Selection of Cases for the Plenary Docket,” 44 University of Pittsburgh Law Review 521.Google Scholar
JERVIS, Robert (1970) The Logic of Images in International Relations. Princeton, NJ: Princeton University Press.Google Scholar
KRISLOV, Samuel (1963) “The Amicus Curiae Brief: From Friendship to Advocacy,” 72 Yale Law Journal 694.Google Scholar
LAWRENCE, Susan E. (1987) “Judicial Response to New Litigants: Legal Services Program Before the Supreme Court.” Prepared for delivery at the Law and Society Association Annual Meeting, Washington, DC.Google Scholar
LINZER, Peter (1979) “The Meaning of Certiorari Denials,” 79 Columbia Law Review 1227.Google Scholar
MADDALA, G. S. (1983) Limited Dependent and Qualitative Variables in Econometrics. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
MASON, Alpheus T. (1964) William Howard Taft: Chief Justice. New York: Simon & Schuster.Google Scholar
McELWAIN, Edwin (1949) “The Business of the Supreme Court as Conducted by Chief Justice Hughes,” 63 Harvard Law Review 5.Google Scholar
MURPHY, Walter F. (1964) Elements of Judicial Strategy. Chicago: University of Chicago Press.Google Scholar
NEW YORK UNIVERSITY SUPREME COURT PROJECT (1984a) “Summaries of Cases Granted Certiorari During the 1982 Term,” 59 New York University Law Review 823.Google Scholar
NEW YORK UNIVERSITY SUPREME COURT PROJECT (1984b) “Appendices,” 59 New York University Law Review 1403.Google Scholar
O'BRIEN, David (1986) Storm Center. New York: W. W. Norton.Google Scholar
O'CONNOR, Karen, and Lee, EPSTEIN (1981–82) “Amicus Curiae Participation in the U.S. Supreme Court: An Appraisal of Hakman's Folklore,” 16 Law & Society Review 311.Google Scholar
PERRY, H. W. Jr. (1987) “Deciding to Decide: Agenda-setting in the U.S. Supreme Court.” Ph.D. diss., University of Michigan.Google Scholar
PRETTYMAN, E. Barrett Jr. (1975) “Opposing Certiorari in the United States Supreme Court,” 61 Virginia Law Review 197.Google Scholar
PROVINE, Doris Marie (1980) Case Selection in the United States Supreme Court. Chicago: University of Chicago Press.Google Scholar
PURO, Stephen (1971) “The Role of Amicus Curiae in the United States Supreme Court: 1920–1966.” Ph.D. diss. (political science), State University of New York at Buffalo.Google Scholar
PUSEY, Merlo J. (1952) Charles Evans Hughes. New York: Macmillan.Google Scholar
REHNQUIST, William H. (1987) The Supreme Court How It Was, How It Is. New York: William Morrow.Google Scholar
ROSENTHAL, Samuel (1988) “Amicus Curiae: Judicial Lobbyist Wields Power in Appellate Courts,” National Law Journal (December 5): 22.Google Scholar
SCHNAPPER, Eric (1988) “Becket at the Bar—The Conflicting Obligations of the Solicitor General,” 21 Loyola Law Review 1187.Google Scholar
SEGAL, Jeffrey A. (1988) “Amicus Curiae Briefs by the Solicitor General During the Warren and Burger Courts: A Research Note,” 41 Western Political Quarterly 135.Google Scholar
SHAPIRO, Stephen M. (1984) “Amicus Briefs in the Supreme Court,” 10 Litigation 21, 24.Google Scholar
SONGER, Donald R. (1979) “Concern for Policy Outputs as a Cue for Supreme Court Decisions on Certiorari,” 41 Journal of Politics 1185.Google Scholar
SPENCE, A. Michael (1974) Market Signaling: Informational Transfer in Hiring and Related Screening Processes. Cambridge, MA: Harvard University Press.Google Scholar
STERN, Robert H., Eugene, GRESSMAN, and Stephen M., SHAPIRO (1986) Supreme Court Practice. 6th ed. Washington: Bureau of National Affairs.Google Scholar
STEVENS, John Paul (1983) “The Life Span of a Judge-made Rule,” 58 New York University Law Review 1.Google Scholar
STEWART, Potter (1982) “Reflections on the Supreme Court,” 8 Litigation 8.Google Scholar
TANENHAUS, Joseph, SCHICK, Marvin, MURASKIN, Matthew, and Daniel, ROSEN (1963) “The Supreme Court's Certiorari Jurisdiction: Cue Theory,” in Schubert, Glendon (ed.), Judicial Decision-making. New York: Free Press.Google Scholar
UELMEN, Gerald F. (1986) “The Influence of the Solicitor General Upon Supreme Court Disposition of Federal Circuit Court Decisions: A Closer Look at the Ninth Circuit Record,” 69 Judicature 360.Google Scholar
ULMER, S. Sidney (1984) “The Supreme Court's Certiorari Decisions: Conflict as a Predictive Variable,” 78 American Political Science Review 901.Google Scholar
ULMER, S. Sidney (1983) “Conflict with Supreme Court Precedents and the Granting of Plenary Review,” 45 Journal of Politics 474.Google Scholar
ULMER, S. Sidney, William, HINTZE, and Lois, KIRKLOSKY (1972) “The Decision to Grant or Deny Certiorari: Further Considerations on Cue Theory,” 7 Law & Society Review 637.Google Scholar
ULMER, S. Sidney, and David, WILLISON (1985) “The Solicitor General of the United States as Amicus Curiae in the U.S. Supreme Court, 1969–1983 Terms.” Prepared for delivery at American Political Science Association Annual Meeting.Google Scholar
WHITE, Byron R. (1982) “The Work of the Supreme Court: A Nuts and Bolts Description,” 1982 New York State Bar Journal 346–49, 383–38.Google Scholar
WILKINSON, J. Harvie III (1974) Serving Justice: A Supreme Court Clerk's View. New York: Charterhouse.Google Scholar