GAMING CERTIORARI.

Date01 May 2022
AuthorNielson, Aaron L.

INTRODUCTION 1131 I. THE BASICS OF CERTIORARI. 1136 A. The Supreme Court's Constitutional and Statutory Powers 1136 B. The Cert Process. 1138 1. General Certworthiness 1139 2. Strategic Inputs 1142 C. The Intuition Behind Gaming Certiorari 1143 D. Previous Analysis of Gaming Certiorari 1144 1. Admissions. 1145 2. Accusations 1146 II. OUR MODEL 1149 A. The Fundamentals of Our Model. 1150 B. Framing the Analysis Through the Lens of Kisor v. Wilkie 1151 C. Modeling the Supreme Court Without Transaction Costs 1152 1. A One-Dimensional Decision Without Transaction Costs . 1152 2. A Two-Dimensional Decision Without Transaction Costs . 1155 D. Modeling the Supreme Court with Transaction Costs 1163 1. Understanding Transaction Costs 1163 a. Opportunity Costs. 1164 b. Error Costs 1165 c. Bargaining Costs 1165 d. Search/Information Costs 1166 2. Categorizing Costs. 1166 a. Baseline Transaction Costs. 1166 b. Dynamic Transaction Costs 1167 3. Incorporating Baseline Transaction Costs 1168 E. Modeling the Supreme Court to Defeat Certiorari 1175 F. Limitations of the Model. 1177 1. Do Judges Really Behave This Way? 1178 2. If Judges Do Behave This Way, Isn't This Model Obvious?. 1178 3. What About Circuit Splits and Counsel?. 1179 4. Don't Existing Tools Already Prevent Gaming?. 1179 III. GAMING CERTIORARI AND THE SHADOW DOCKET 1181 A. The Basics of the Summary Reversal. 1181 B. A Transaction Costs Explanation?. 1183 C. Summary Reversal's Pluses and Minuses. 1186 D. An Alternative? 1187 IV. THE IMPLICATIONS OF GAMING CERTIORARI. 1189 A. Doctrinal Implications 1189 B. Normative Implications. 1191 V. POSSIBLE REFORMS. 1194 A. Change the Rules. 1194 B. Case Selection Reform 1195 C. Increasing the Costs of Gaming Certiorari. 1196 D. A Better Understanding of Supremacy?. 1196 CONCLUSION. 1197 INTRODUCTION

The United States Supreme Court sits atop the judicial hierarchy: it is the ultimate arbiter of what the law means. But that doesn't mean the Supreme Court always gets the law "right" in any absolute sense. As Justice Robert Jackson famously put it, "We are not final because we are infallible, but we are infallible only because we are final." (1) And because of that supremacy--the power to give the final answer--it may seem natural that lower court judges (ordinarily) decide cases as the Supreme Court wants them to decide cases. (2)

Reality is more complicated. The Supreme Court is supreme vis-a-vis lower courts in the sense that it can exercise appellate jurisdiction over their decisions. (3) Appellate jurisdiction, however, does not extend to all cases. (4) And even when appellate jurisdiction does exist, the Supreme Court's power to exercise that jurisdiction--at least in the real world--is not entirely within the Justices' control. Today, the Supreme Court fills its docket almost entirely through writs of certiorari. The lower courts decide hundreds of thousands of cases per year, "approximately 7,000 [to] 8,000" of which lead to certiorari petitions. (5) The Supreme Court then sorts through that immense stack and grants "cert" for less than one hundred cases per term. (6) In selecting cases, the Justices look for "certworthy" petitions that present questions with enough importance to the legal system as a whole to justify use of the Supreme Court's scarce time. (7) Or more colorfully, when deciding whether hear a case, "[t]he game... [must be] worth the candle." (8)

The Supreme Court's pickiness makes sense; there are simply too many petitions for the Justices to hear all of them. This inherent capacity limitation thus creates opportunities for lower courts to "game" certiorari--that is, to deliberately make a case appear more or less certworthy than the Supreme Court would perceive it to be if the Justices had complete information. By sending "false" signals (in the sense that the signals do not convey information that the Justices would like to know), the lower courts can influence, at least somewhat, the Supreme Court's exercise of jurisdiction and thus reduce the Supreme Court's realistic supremacy over legal disputes.

Lower courts may seek to game certiorari for many reasons. (9) Most obviously, a judge may be tempted to evade review where the Supreme Court majority is likely to hold a different opinion on an issue that is important to the lower court judge. In such cases, judges may be tempted to "cert-proof" opinions that they believe the Supreme Court's majority will dislike, taking advantage of the Justices' capacity limitations by reverse engineering opinions so that the Supreme Court will consider them "bad vehicles" for certiorari review. (10) By contrast, lower court judges who tend to align with the Supreme Court's majority may seek to push cases to the Justices by making them especially attractive vehicles, thus providing the Supreme Court with an opportunity to shift the law in a direction that the lower court judges favor. And even in cases without ideological overtones or obvious differences of opinion between the lower court and the Supreme Court, judges who simply do not like to be reversed--perhaps because they consider it embarrassingmay seek to "bury" difficult issues to avoid review. Regardless of the reason, the power of lower courts to game certiorari complicates the reality of Supreme Court's supremacy.

Here, we focus on how lower courts can deliberately evade or attract Supreme Court review by increasing or decreasing the Supreme Court's "transaction costs." (11) Using the Supreme Court's 2019 decision in Kisor v. Wilkie as our archetype, (12) we first construct a game theory model of the Supreme Court's certiorari and opinion assignment processes to demonstrate why gaming works as a theoretical matter. Importantly, our model does more than just formalize common intuitions. (13) Rather, it demonstrates the power of lower courts to essentially "trade off" substantive and procedural values to reach, from their perspectives, outcomes that the Supreme Court has no realistic way to reverse--or that, from the other direction, are handed to the Supreme Court on a silver platter. In this way, the lower courts may have a great deal of ability to control the Supreme Court's exercise of discretionary jurisdiction.

With our model in place, we then turn to one aspect of the Supreme Court's so-called "shadow docket" (14) : summary reversals. In recent years, commentators have focused on how the Supreme Court can (and does) use less formal orders to reverse or alter lower court decisions. (15) Rather than grant certiorari, consider merits and amicus briefing, hear oral argument, and take time to issue an opinion that fully explains the reasoning behind the Court's decision, the Court sometimes acts more summarily, including deciding cases based on the certiorari briefing alone. (16) These decisions have become controversial. (17) Although we do not address all aspects of the shadow docket in this Article, our model offers a new perspective on this aspect of it. Because use of the shadow docket can be less costly from the Supreme Court's perspective, in that the Justices can act without using one of their oral argument slots, the Justices may perceive the shadow docket as a "lower-cost" tool to discourage lower courts from using the Supreme Court's inherent capacity limitations against it. Of course, this is not to say that summary reversal is necessarily worthwhile; the practice has downsides, too. (18) But transaction costs may help explain in part why summary reversal has become so attractive to modern Justices.

We next address the implications of our model. In many ways, the United States' approach to law takes the Supreme Court's supremacy as a given--indeed, that supremacy is found in Article III of the Constitution and is embedded in statutory law. (19) Yet that common view is in tension with the realization that the Justices' ability to "say what the law is" (20) may be contingent on a variety of factors, including but not limited to lower courts' ability to manipulate certiorari. The possibility that certiorari can be gamed thus poses a challenge to the conventional view of supremacy itself: in some cases, the Supreme Court may have no realistic ability to control how law is interpreted and applied. This raises difficult doctrinal questions about the uniformity of federal law and the Supreme Court's future. It also raises difficult normative questions about the proper relationship between lower courts and the Supreme Court. How should we understand lower court attempts to game certiorari? (21) And if gaming certiorari is sometimes justified--itself debatable--how do we address the externalities that doing so imposes on litigants, third parties, and the judiciary as a whole? We contend that the ability to game certiorari may be a problem in need of at least a partial solution. But unfortunately, there is no perfect solution because the tools that a lower court might use to game certiorari themselves have significant benefits. Ultimately, therefore, our goal is not to solve the problem but instead to present a more nuanced understanding of the judiciary as a whole.

Part I of this Article sets the stage by discussing how certiorari works and exploring the limited and largely anecdotal existing literature on how lower courts can game certiorari. Part II constructs a graphical model of how certiorari can be gamed using a hypothetical version of Kisor. We build this model from the ground up, first exploring the Supreme Court's certiorari and opinion assignment dynamics, and then reverse engineering that process to demonstrate how those dynamics can be manipulated by strategic lower courts. Because Supreme Court decisions--even those involving a single "issue" or "question presented"--often involve multiple relevant dimensions, we present both a traditional single-dimensional analysis and a more realistic two-dimensional analysis. In Part III, we apply our model to one aspect of the Supreme...

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