Beyond Defensive Denials: Evidence from the Blackmun Files of a Broader Scope of Strategic Certiorari

Abstract

The U.S. Supreme Court sets its own agenda. The consequentiality of this decision and the little institutional constraints involved induce justices to select cases strategically. They exercise their gatekeeping capacity with future consequences in mind. Based on original material from the Blackmun Files, this article examines strategic thinking of a broader scope than the type traditionally described in the literature. On top of dispositional outcomes, the strategic behavior analyzed concerns doctrinal output and policy implications. Thus, strategic conduct during certiorari is attached to a broader institutional context that incorporates various goals of individual justices, the collegial game, the other branches, and time. In closing, implications for the constitutional position of the Court are discussed.