Abstract
Although scholars of the Supreme Court's agenda have provided a great deal of insight into the process of case selection, relatively little is known about how the Court selects issues within a case. Most models of judicial decision making assume that the issues presented by the litigants are fixed. This analysis suggests, however, that in over 20% of all cases, justices actually create new issues. When the Court engages in this issue creation, occasionally the justices are addressing jurisdictional issues or are substituting a narrower claim. More often than not, however, the Court provides a response that is much broader that what the parties asked. Amicus briefs were expected to be a major source of these new issues, but the data show little to no evidence that justices respond to new issues raised by amici. The primary source of these new issues appears to be the justices themselves.
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