The Economist explains

How the Supreme Court chooses its cases

By S.M. | NEW YORK

NEXT week the Supreme Court will hear arguments in a case that could fatally undermine the Affordable Care Act (ACA), the health-care law also known as Obamacare. At the end of April it will consider whether same-sex marriage is a right for all Americans. In addition, the Supremes will weigh in this spring on whether a death-penalty drug is cruel and unusual, on whether Texas can draw electoral districts in ways that dilute black voters’ power, on what amounts to pregnancy discrimination in the workplace and on whether judicial candidates have a right to solicit campaign funds directly. Of the thousands of petitions for certiorari they have considered thus far during the present term, which began in October, the justices have agreed to hear only 69. How does the winnowing work?

The culling process occurs in 28 closed-door sessions each year. The largest reaping is the so-called Long Conference, a meeting at the end of September during which the nine justices consider hundreds of petitions that have piled up over their summer break. The justices’ clerks, crack graduates of elite law schools, will have already read through the petitions and summarised them in writing, recommending whether to grant or deny “cert”. It takes five justices to decide a case, but four are enough to agree to hear one. When Warren Burger was chief justice in the 1970s and 1980s, a “join-3” tradition meant that a justice might extend a courtesy fourth vote to supplement those of three of his colleagues who wanted to hear a case. This form of collegiality helped swell the court’s docket to over 150 cases, but it is largely a thing of the past, which may explain why the Supreme Court is hearing about half the number of cases it heard a generation ago.

According to Rule 10 of the Supreme Court’s official rule book, a case is “rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law”: that is, when no fundamental confusion in the law is at fault. Instead, the justices tend to grant review in cases where two or more of the 13 US courts of appeals have issued contradictory rulings on significant matters of federal law. This norm may explain why the court declined to hear seven challenges to pro-same-sex-marriage rulings last October but changed its tune on January 16th in the wake of a ruling by the Sixth Circuit Court upholding same-sex-marriage bans in four states.

The justices’ decision to take this term’s case challenging the legality of certain tax subsidies under Obamacare cannot, however, be explained by a circuit split. When the Supreme Court agreed to review King v Burwell in November, the Fourth Circuit Court had rejected the challenge to the ACA and the entire panel of the Circuit Court for the District of Columbia had yet to fully consider a similar case. Nicolas Bagley, a law professor at the University of Michigan who supports the government’s view of the ACA, sees ominous signs in the court’s agreement to hear King: “four justices apparently think...that King was wrongly decided”. The grant “substantially increases the odds”, Mr Bagley writes, “that the government will lose this case.” That’s speculation, but guesswork is all we have in the face of the Supreme Court’s well-guarded secrecy regarding its certiorari orders. Justices occasionally issue written dissents from cert denials: the unlikely trio of Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg, for example, explained last fall why they would have voted to hear a drug-sentencing case their five colleagues took a pass on. But justices voting to take a case are always mum as to why.

Dig Deeper:
A decline in judicial empathy in the Supreme Court (November 2014)
Four words that could bring Obamacare down (February 2015)
The Supreme Court is failing to tell everyone what it is thinking (October 2014)

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