THE LOTTERY DOCKET.

Author:Epps, Daniel

We propose supplementing the Supreme Court's caseload with a "lottery docket" of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court's free hand in agenda setting has obvious benefits, but it has drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit courts that their decisions are unreviewable--and thus unaccountable--in unimportant cases. And it passes over many cases that are important in a less narrow sense. The Court uses the existence of a circuit split to identify cases as important, but splits are merely proxies for, not measures of, importance. While many issues selected through the certiorari process are important, not all important issues are selected by certiorari.

More fundamentally, we question the premise that only "important" cases deserve the Court's attention. The legal system would be improved if every Term, the Supreme Court were forced to decide some unquestionably unimportant cases--run-of-the-mill appeals dealing with the kinds of legal questions that the lower courts resolve every day. Over the long run, a lottery docket would offset the pathologies of the certiorari system without depriving the Court of its ability to resolve questions that have divided the lower courts.

TABLE OF CONTENTS INTRODUCTION I. THE CERTIORARI PROCESS AND ITS PATHOLOGIES A. The Modern Certiorari Process B. Problems with the Current Process 1. Information 2. Accountability 3. Imperfect Proxies C. Previous Proposals for Reform II. THE LOTTERY DOCKET A. The Proposal B. Benefits 1. Better Information 2. Tighter Accountability 3. More of the Important Issues C. Objections 1. Constitutionality 2. Fairness and Legitimacy 3. Scarce Resources 4. Percolation III. IMPLEMENTATION AND OPTIMIZATION A. Opt-in or Automatic Entry B. Weighted Draws C. State Cases CONCLUSION INTRODUCTION

The Supreme Court today has nearly boundless power to decide which cases it will hear. This was not always so. Until 1891, litigants in many classes of cases could appeal to the Supreme Court as a matter of right. (1) As late as 1988, the Supreme Court was obligated to hear any case in which a federal court invalidated a state or federal statute on constitutional grounds. (2) But for almost thirty years, with the expansion of certiorari jurisdiction, the Court's power to set its own agenda has been nearly limitless. (3) By rule and custom, the Court exercises its discretion by selecting cases that are important, in a narrow sense of that term. Most commonly, the Court deems cases worth hearing if they turn on questions of law that divide the lower courts. (4)

Critiques of the Court's agenda-selection practices have mounted in recent years. Critics complain that the Court hears too few cases, (5) that it ignores particular areas of law, (6) and that its docket has been "captured" by an elite Supreme Court bar. (7) Few, however, question certiorari's basic premise-- that only legally important matters deserve the Court's attention. All seem to agree that the Supreme Court should devote itself to resolving the important cases; the quarrel concerns how the Court should identify which cases are important, and how many of those it should hear each year.

This Article questions the premise that only "important" cases deserve the Court's attention. We argue that the legal system would benefit if, every Term, the Supreme Court were forced to decide some unquestionably unimportant cases--some run-of-the-mill appeals dealing with the kinds of ordinary and seemingly inconsequential legal questions that the lower courts resolve every day. Specifically, we propose that the Court--or Congress, by statute--supplement the traditional certiorari docket with a small number of cases randomly selected from final judgments of the circuit courts. (8) This proposal would, unquestionably, mean that the Court would end up devoting time to some seemingly trivial cases. But though the Supreme Court's attention is a scarce resource, spending some of it this way could provide surprising benefits. Getting the Supreme Court to hear a few more ostensibly unimportant cases could help advance deeply important goals.

The argument proceeds as follows. In Part I, we begin with some background on the history of the Supreme Court's jurisdiction. We then explain the Court's current certiorari process. The Court uses a set of proxies-- principally, the existence of a circuit split--to identify legally important cases in which to grant certiorari. (9) This approach has obvious advantages. Most critically, it enables the Court to unify federal law by resolving questions that have divided the lower courts. (10)

But this approach introduces pathologies as well--for the Court, the judiciary, and the development of federal law. First, because the justices hear only "important" cases, they are isolated from the day-to-day work of the lower federal courts in ordinary, "unimportant" cases. This means that the justices are systemically deprived of information about how statutes, regulations, and even their own decisions play out in the mine-run of cases. (11) Second, when a circuit court decides a legally unimportant case--that is, a fact-bound case or a case not plausibly implicating a circuit split--it knows that the chance of Supreme Court review is practically nil. In such cases (which, we suspect, constitute the vast majority) the circuit court lacks the accountability that traditional models of judicial hierarchy--not to mention sound institutional design--presuppose. (12) Third, the existence of a circuit split is only a proxy for legal importance, not a measure of it, and is thus inevitably imperfect. The Court's reliance on circuit splits to recognize legal importance misfires in systematic and predictable ways. In other words, while many, or even most, legal issues selected through the certiorari process are important, not all important legal issues are selected by certiorari. (13)

In Part II, we propose the "lottery docket": a mechanism that could offset the pathologies of the certiorari system without depriving the Court of its ability to resolve questions that have divided the lower courts. Section II.A provides the basic outline of the proposal. Specifically, we propose that, either through Court rule or congressional enactment, the Court's docket be expanded to include a small number of cases--perhaps twenty to forty-- drawn at random from final judgments of the circuit courts. The goal would be to add enough cases to provide key benefits while not imposing such great demands on the Court's attention to distract significantly from the certiorari docket. Section II.B explains the many benefits of this proposal. Over the long run, it would expose the justices to a more representative range of cases and issues that confront federal courts, counteracting certiorari's informational pathology. (14) It would provide greater accountability over circuit courts, as circuit judges would recognize that their decisions have some chance of being reviewed even in the most quotidian cases. (15) And, again over the long run, it would permit the justices to hear and decide important legal questions that lack the traditional indicia of importance. (16)

Section II.C goes on to defend the lottery docket against several objections. First, we consider whether there are any constitutional obstacles in implementing this proposal, and find none. Though resolving the merits of a case using a random-decision procedure (like flipping a coin) could violate due process, there is no reason to conclude that randomly choosing cases for review is unconstitutional. Selecting a case for review is not a decision on the merits of the case, and traditionally, randomization in nonmerits decisionmaking is viewed as permissible. (17) Second, we ask whether selecting cases for review via a lottery is somehow unfair or illegitimate. We conclude that this procedure would be fairer to litigants than the current system because it would give those who experience erroneous rulings by circuit courts an additional chance to have those errors corrected. (18)

Third, we confront the objection that our proposal would waste the Court's scarce resources; any time dealing with lottery cases means less time dealing with the rest of the Court's caseload. We accept that there is a tradeoff here, but we argue that the benefits outweigh the costs, especially if the number of lottery cases is small enough so as not to detract seriously from the certiorari docket. (19) Finally, we consider the problem of forgone "percolation." One argument for the Court's circuit split--focused certiorari process is that the Court will make better decisions after a legal issue has sufficiently "percolated"--that is, after a number of courts of appeals have examined the issue and aired all the best arguments on both sides of the issue. Forcing the Court to decide legal issues through mandatory appeals could short-circuit this process too early. Although this objection is not without force, percolation itself is costly--it can permit erroneous views to persist in the lower courts for years or decades longer than they might otherwise, causing significant harm to litigants in the process. Moreover, where a legal issue seems particularly in need of percolation, it is possible the Court can decide the case on narrow grounds in order to preserve room for further lower court consideration. (20)

In Part III, we consider a number of more fine-grained design questions involved in implementing the proposal. Should all decisions of the circuit courts be included in the lottery, or should litigants affirmatively...

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