Strategy in Supreme Court Case Selection: The Relationship Between Certiorari and the Merits

In this Article the authors examine how the Supreme Court exercises its virtually unfettered control over case selection. With its certiorari power, the Court sets its direction and influences the country's social agenda, yet relatively little is known about how the Justices choose cases because of the intense secrecy that envelops this aspect of their work. Using data from the private papers of retired Justices, the authors analyze whether, and to what extent, the Justices cast their votes to grant or deny cases based on whether they expect to win on the merits. More specifically, the authors analyze whether Justices who are ideologically aligned on the merits also tend to vote together at the case selection stage and, similarly, whether Justices who are ideologically opposed on the merits also tend to cast opposing votes at the case selection stage. In addition, the authors look more closely at the Justices' voting behavior from the certiorari stage through the merits stage in two special sets of cases-those granted unanimously and those granted by a minority-to see whether the Justices' votes on certiorari are merely a precursor to their votes on the merits. The authors find that although there is a substantial strategic element in the Justices' case selection decisions, jurisprudential and institutional considerations play a significant role as well.