The Theoretical Framework: Case Selection and Strategic Behavior on the Court

Abstract

Considerations during Case Selection—What are the considerations that guide justices of the Supreme Court in their decision whether to put a case on the plenary docket? When deciding whether to grant review, Justices consider various aspects of the petition. Some of those guides are specified in Part III Jurisdiction on the Writ of Certiorari in Rules of the US Supreme Court (see appendix 2). Yet, the verbiage in the Rules (most importantly Rule 10) is anything but crisp. Some scholars contend that as the Court has been willing to maintain as wide a range of action as possible, this ambiguity is not inadvertent.1 The Supreme Court is a court of last resort. As such, it is in charge of consistency within the judicial hierarchy. This includes uniformity of jurisprudence and doctrine among the federal circuits and between those and the state courts. One key reason, therefore, why the Court would positively consider a request for review is a conflict between the circuits or between the federal courts and state courts (Sturley, 1989). Such a conflict indicates discrepancies, which may pose a threat to the jurisprudential consistency the Court strives to achieve within the federal court system as well as in the country as a whole.