Finding Certainty in Cert: An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015

Adam Feldman
University of Southern California, Political Science, Students
Alexander Kappner
University of Southern California, Law School, Students

February 4, 2016

USC CLASS Research Paper No. 16-5
USC Law Legal Studies Paper No. 16-5
Villanova Law Review, Forthcoming

Abstract:

The Supreme Court annually grants approximately 5% of the petitions to hear cases it receives. It denies petitions from the federal government, from large corporations, and from high-profile attorneys. The decisions of which petitions for writ of certiorari the Court grants sets the Court’s agenda each term and defines the issues which the Court will engage. With such a low likelihood that the Court hears any particular case, what makes a petition more or less likely to be granted? The focus of much of the existing scholarship on certiorari deals with the theoretical underpinnings of these judicial decisions. In this paper we set out to add to the empirical study of certiorari by examining an expansive, original dataset of the 93,000 petitions for certiorari between the 2001 and the start of the 2015 Supreme Court Terms. This allows us to investigate decisions made during and directly preceding the Roberts Court. The empirical examination focuses on several factors that are thought to affect certiorari decisions, mainly focusing on the individuals and entities involved in the certiorari petitions. These include the lower court that most recently heard the case, the parties, the attorneys, law firms, and the participation of amicus curiae. We look at success from both sides of the litigation: both in respect to petitioners and respondents. The findings in this paper are designed to add to our understanding of the extent that these individuals and entities factor into the likelihood of certiorari grants and denials. They are also designed to locate the specific individuals and entities that made the largest impact on certiorari decisions for the 2001 through 2015 Supreme Court Terms.

An Empirical Analysis Of The Factors Involved In Supreme Court Certiorari Decisions From 2001-2015 – Introduction

In what has become a common recent trope, each June the Supreme Court announces its most anticipated decisions. These decisions deal with controversial topics ranging from abortion and contraception to universal healthcare and marriage equality. For the casual observer, it would appear that the bulk of the Court’s work is in deciding these cases. Based on numbers alone, however, this could not be further from the truth. During the 2013 Supreme Court term, for instance, 7,326 writs of certiorari (cert) were filed with the Supreme Court. The Court only granted plenary review in 76 or approximately 1% of these cases.

The Supreme Court typically does not hear cases on first impression. It only does so through its power of original jurisdiction in limited instances, predominately dealing with disputes between two states. The Court lacks discretion on whether or not to take cases on appeal, but this too is limited to a particularly small class of cases that are authorized by specific statute.

The Supreme Court hears cases on cert, the most common method of bringing cases to the Court, only after all other sources of appeal to lower courts are exhausted. After a decision is rendered by the lower court, a party has 90 days to file a petition for certiorari with the Supreme Court. There are no cut-and-dry rules which bind the Court to grant certiorari in certain cases as these writs are purely discretionary. The Supreme Court does provide some guidance in its rules for what types of issues are more relevant for Supreme Court review but it is not bound by them. With the number of petitions the Court receives, the clerks and justices need heuristics to efficiently locate petitions for cases that the Court might hear and that are at least worthy of additional review.

Of the petitions the Court receives, the vast majority currently are in forma pauperis (IFP). Litigants without sufficient funds to bring lawsuits to the Supreme Court may be granted in-forma pauperis status, where filing fees and associated costs are waived. Most of these filings come from incarcerated prisoners. Although in-forma pauperis filings make up the bulk of petitions for certiorari to the Court, these petitions are granted much less frequently than paid petitions.

After the petitions for certiorari are filed each year, the Supreme Court Justices and, more importantly, their clerks must wade through thousands of petitions and accompanying briefs. The clerks often draft memoranda about the merits of the various petitions that can play large roles in shaping the justices’ decisions on certiorari. Due to the high volume of filings each year, the justices and clerks need shorthand methods to decide which cases to accept on cert. Several pieces of information may be particularly helpful in these decisions. Previous empirical studies support the proposition that while a very low percentage of petitions for certiorari are granted on the aggregate, when lawyers and law firms with extensive Supreme Court experience file these positions, the chance of success substantially increases. Secondarily the Court may use the lower court where the case was previously heard and the Court’s perceived alignment of views with that court, as well as amicus curiae briefs filed at the cert stage to assist in gauging whether or not to grant certiorari. Based on the number of factors that may influence the justices’ certiorari decisions and the limited time the justices and clerks have to make these decisions, the Court needs effective cues to help process this heap of information.

Supreme Court, Certiorari Decisions

More than any Supreme Court preceding it, the Roberts Court has to deal with an ever-increasing number of petitions for certiorari. It does so while at the same time decreasing the overall number of cases it hears on average per term.15 This reinforces the importance that the Court makes the right decisions of which cases to hear. The importance of the cases the Court grants for review is further underscored by the perception that this Chief Justice makes strategic decisions in order to manage his own reputation and that of the current Court.16 If the Chief Justice is truly legacy oriented, then many certiorari decisions will be affected by this interest, as the Chief Justice leads the conferences among the justices where the list of cases the Court will decide for the term is agreed upon. By choosing to hear certain cases with specific facts, the Court decides which issues it will tackle and which to avoid. In doing so the Court must decide between issues that are more or less controversial and more or less salient to the general public.

This paper confronts the issue of how the recent Supreme Court sets its agenda by analyzing docket reports the 93,000 petitions that the Court decided on between the 2001 and the start of the 2015 terms. It uses an original dataset that combines information about attorneys involved in each petition, law firms, lower court, amicus curiae briefs, and parties. This dataset allows us to empirically test some of the prevalent hypotheses for the agenda setting stage including the relationship between each of these factors and the likelihood of certiorari success.

This paper not

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