Constraining certiorari using administrative law principles.

• Author: Watts, Kathryn A.

The U.S. Supreme Court--thanks to various statutes passed by Congress beginning in 1891 and culminating in 1988--currently enjoys nearly unfettered discretion to set its docket using the writ of certiorari. Over the past few decades, concerns have mounted that the Court has been taking the wrong mix of cases, hearing too few cases, and relying too heavily on law clerks in the certiorari process. Scholars, in turn, have proposed fairly sweeping reforms, such as the creation of a certiorari division to handle certiorari petitions. This Article argues that before the Court's discretion to set its own agenda is taken away, another area of the law--one that already has thought long and hard about how to constrain delegated discretion--should be consulted: administrative law. Although certiorari and administrative law certainly differ, both involve congressional delegations of discretion to a less accountable body and therefore both raise concerns of accountability, transparency, and reasoned decisionmaking. Accordingly, in considering certiorari reform, it makes sense to borrow from some of administrative law's well-developed lessons about how delegated discretion can be controlled. Specifically, after consulting the nondelegation doctrine, reason-giving requirements, public participation mechanisms, and oversight principles found in administrative law, this Article concludes that vote-disclosure requirements and increased public participation stand as promising ways of checking the Court's currently unconstrained discretion.

INTRODUCTION I. A BRIEF HISTORY OF CERTIORARI A. The Court's Beginnings as a Court of Mandatory Jurisdiction B. From Obligatory to Discretionary Jurisdiction C. Current Certiorari Practices II. THE RELEVANCE OF THE ADMINISTRATIVE LAW ANALOGY TO CERTIORARI REFORM A. Criticisms of Certiorari and Proposals for Reform B. Administrative Law as an Untapped Resource for Reform III. CHECKS ON CERTIORARI VS. CHECKS ON ADMINISTRATIVE AGENCIES A. The Nondelegation Doctrine 1. Statutory Text 2. Legislative History 3. Supreme Court Rule 10 B. Softer Mechanisms for Control. 1. Political Accountability and Oversight 2. Public Participation 3. Judicial Review 4. Reason Giving IV. CHECKING THE COURT'S DISCRETION: SOME POSSIBLE SOLUTIONS BASED ON ADMINISTRATIVE LAW PRINCIPLES A. Legislating More Specific Standards B. Mandating Disclosure to Enable Greater Transparency and Monitoring 1. Imposing a Reason-Giving Requirement 2. Requiring Disclosure of Certiorari Votes a. Votes on Petitions That Fail to Make the Discuss List b. Votes on All Petitions or All Denied Petitions C. Enabling Greater Public Participation 1. Invited Amici Briefs 2. Uninvited Amici Briefs 3. Certification CONCLUSION INTRODUCTION

The U.S. Supreme Court today enjoys nearly unfettered discretion to choose which cases to hear via the discretionary writ of certiorari. (1) Various statutes enacted by Congress from 1891 to 1988 almost entirely eliminated the Court's obligatory jurisdiction and delegated to the Court the task of setting its agenda. Thanks to these changes, the Court no longer operates in a world where the Court, in the words of Chief Justice John Marshall, had "no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." (2) Rather, the Court today enjoys broad discretion to decide which cases warrant the Court's time, routinely granting certiorari in only about one percent of all petitions received each term. (3)

In choosing which cases will win a prized slot on the docket, the Court operates outside of the public eye and under a cloak of secrecy. The Court, for example, generally does not explain why a particular case will or will not be heard. (4) Nor does the Court routinely disclose individual Justices' votes on certiorari petitions. (5) In addition, the Court makes its certiorari decisions free of any constraining legislative criteria that might differentiate those cases that merit certiorari from those that do not. (6)

In light of the sweeping discretion that the Court enjoys and the importance of the Court's docket-setting powers, (7) it is not at all surprising that certiorari has been criticized. For example, Sanford Levinson recently commented that "there are overtones--given the extent of discretion enjoyed by the Court--of southern sheriffs during the 1960s in having the authority to allow (or disallow) parades or demonstrations based on broad, unhelpful 'standards' and, ultimately, on what occasionally seems to be whim." (8) Edward Hartnett has questioned whether the Court's broad discretion to set its own agenda can be squared with "classic conceptions of judicial review, judicial power, and the rule of law." (9) In addition, two scholars of the Court have noted that "[t]he most striking feature of the [certiorari] process is that it lacks most of the trappings of traditional judicial decisionmaking--collegial deliberation, constraining criteria, majority rule, and public accountability." (10)

What is surprising, however, is that scholars who have criticized certiorari and considered possible means of reform generally have focused on forcing the Court to hear certain kinds of cases or to hear more cases, (11) or alternatively on taking discretion away from the Court and giving it to some other body like a certiorari division. (12) Accordingly, scholars generally have not focused on the source of the Court's discretion (namely, delegations from Congress) and how that delegated discretion might be cabined or checked. In particular, scholars have failed to look to the lessons of another area of the law that has already thought long and hard about how to control delegated discretion: administrative law. (13) That is what this Article aims to do. Although administrative law might at first blush appear to be an unconventional place to look for ideas about how to reform certiorari, (14) this Article argues that both certiorari and administrative law involve the same underlying concerns of accountability and reasoned decisionmaking that arise when Congress--a deliberative and democratically accountable branch--delegates broad discretion to a less accountable body.

The aim here is not to argue that the nondelegation doctrine, which limits Congress's ability to delegate lawmaking power, strictly governs in the certiorari context--although there are persuasive arguments that the doctrine might apply to certiorari that warrant further exploration. (15) Rather, the contention is that, even if the nondelegation doctrine does not control certiorari as a constitutional matter, the same principles that underlie the doctrine--that important policy decisions should be made in a transparent, accountable, and principled manner--represent sound policy that the Court and Congress should take into account in considering reforms to certiorari.

This Article proceeds in four parts. Part I provides an overview of certiorari. Part II argues that administrative law's lessons warrant consideration in the certiorari context because both certiorari and administrative law involve broad congressional delegations of policymaking discretion to a less accountable body and hence both raise similar concerns about accountability, transparency, and reasoned decisionmaking.

Part III looks at well-developed principles and mechanisms that operate in the administrative law world to constrain discretion--namely, the nondelegation doctrine, political oversight, public participation, judicial review, and reason-giving requirements. Part III concludes that the Court's discretion in the certiorari context is not checked by similar principles. When Congress gave the Court the power to pick its cases, for example, Congress did not include any guiding statutory principle, such as a directive that the Court grant certiorari where doing so would serve the "public interest," as the nondelegation doctrine would require in the administrative context. (16) Nor are the Court's certiorari decisions constrained by any of the other mechanisms that play a constraining role in administrative law, such as reason-giving requirements, judicial review, or meaningful political oversight.

Finally, Part IV borrows from administrative law's lessons and considers three possible means of certiorari reform aimed at increasing accountability, transparency, and participation: (1) legislating more meaningful standards to provide an intelligible principle to guide certiorari; (2) providing reasons for certiorari denials or, at a minimum, disclosing Justices' votes on certiorari petitions; and (3) increasing the opportunity for public participation in the certiorari process. Part IV concludes that a vote-disclosure requirement and increased opportunities for public participation, which could be achieved through greater use of invited and uninvited amicus curiae briefs as well as a revival of certification, offer the most promising means of constraining the Court's discretion and enabling greater transparency, deliberation, and monitoring in the certiorari process.

1. A BRIEF HISTORY OF CERTIORARI

   At its inception, the Court's jurisdiction was not discretionary. Rather, the Court initially stood as a court of obligatory jurisdiction that felt it had "no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." (17) It was only through the passage of various laws beginning in 1891 that Congress, responding primarily to functional concerns about the Court's workload, transformed the Court from a court with "an entirely mandatory docket" to a court with an "overwhelmingly discretionary one." (18) This Part describes that transformation.

   1. The Court's Beginnings as a Court of Mandatory Jurisdiction

      Article III, Section 1 of the Constitution provides for "one supreme Court" and empowers Congress to create inferior federal courts. (19) Article III, Section 2 then defines the judicial power...