Strategic Behavior at the Certiorari Stage of the Supreme Court of the United States by Aaron Walker Honors Thesis Appalachian State University Submitted to the Department of Government and Justice Studies and The Honors College in partial fulfillment of the requirements for the degree of Bachelor of Science May, 2016 Ellen Key, Ph.D., Thesis Director Paul Gates, Ph.D., Second Reader Elicka Peterson-Sparks, Ph.D., Departmental Honors Director Ted Zerucha, Ph.D., Interim Director, The Honors College 2 Abstract The Supreme Court of the United States is the most insulated institution in the federal government. Scholars suggest that justices on the Court engage in strategic behavior, rather than sincere judicial behavior. The certiorari stage is a particular point of interest for scholars that believe justices engage in strategic voting. However, prior research has not included cases that were denied, in which strategic behavior is also evident. A logistic regression of individual justice votes to grant or deny certiorari in 499 cases during the 1986-1993 Rehnquist Court terms shows that justices routinely engage in strategic behavior at the certiorari stage. They are responsive to both institutional and external factors when deciding to vote to grant or deny certiorari. 3 Introduction The process of certiorari jurisdiction is one in which the proverbial needle in a haystack is found (Breyer 2006). Many scholars have researched the possibility of strategic behavior by Supreme Court justices in the certiorari stage (Shubert 1958; Brenner 1979; Krol and Brenner 1989; Provine 1980; Perry 1991; Epstein and Knight 1998). Certiorari is the first step in the process of the Supreme Court reviewing a case and serves as a gate-keeping point for the justices. This stage is where each justice will decide if he or she believes that a case warrants full review by the Court. The shortcoming of prior research is that it does not include data on cases that were denied. Previous research also considers the Court as a whole when examining strategic behavior instead of looking at each justice as a strategic actor. I propose that using data on individual justices’ votes in cases that were both granted and denied will point to strategic behavior by individual justices in the certiorari stage and strengthen the findings of previous research. Literature Review Writs of Certiorari Rule 10 Unlike its outline for the other two branches of the federal government, the Constitution of the United States is relatively silent on the judiciary. Article III of the Constitution, in only two sections, provides for one Supreme Court and inferior courts that Congress may establish as it sees fit. Among the many conversations about federalism, a major question was the jurisdiction of the Supreme Court (Hamilton et al. 2009; Borden 1965; Ratner 1981; Amar 1989). Article III, Section 2 limits the authority of the federal courts to cases concerning constitutional questions, laws of the United States, cases in which 4 the United States is a party, controversies between different states, and controversies between citizens of different states. The Supreme Court of the United States enjoys original jurisdiction over a small subset of matters1. These are the only cases that the Court must hear. The cases included in the the Court’s original jurisdiction make up a very small number of cases that they consider. There are four other ways that a case can be heard by the Court: appeal as a matter of right, by a writ of certiorari, writ of certification, or by an extraordinary writ. Appeal as a matter of right occurs when the parties have a statutory right to review by the Supreme Court without having to obtain permission from the Court. This jurisdiction is found in Title 28 of the United States Code and was severely limited when §1257 was revised in 1988 to remove appeal by right from state court decisions, making certiorari the only avenue for a party to have his case reviewed by the Supreme Court (28 U.S. Code §1257). Chief Justice Rehnquist (1986) noted that Congress, via its passage of the Certiorari Act of 1925, agreed with with the Court that appeal by right was not necessary in cases originating from state courts because the Court had abandoned its role as an error-correcting court in favor of deciding broader legal questions. Instead of simply claiming that a judge made a mistake, cases must present questions that have political or social import. A writ of certification is the procedure by which a federal appeals court seeks guidance from the U.S. Supreme Court, and an extraordinary writ occurs when the Court exercises unusual or discretionary power (e.g. habeas corpus or writ of mandamus) (Garner and Black 2004). The most popular avenue for cases to reach the Supreme Court and the                                                                                                                 1  Controversies between two or more states, controversies between the United States and a state, and proceedings involving a citizen of one state against a citizen of another state or foreign aliens. 5 origin of the majority of the cases heard is by a writ of certiorari, which allows for judicial discretion in the cases that they hear. This so-called gatekeeping power of the Court was granted by the Judiciary Act of 1925 (Witt 1990). Guidance on a writ of certiorari to the United States Supreme Court can be found in the Rules of the Supreme Court (2013). Rule 102 deals specifically with certiorari. The rule outlines the Court’s position that issuance of a writ of certiorari is a matter of judicial discretion and not a matter of right; writs will be granted only for “compelling reasons.” Rule 10 outlines some instances that may be considered compelling reasons (e.g. conflict in the circuit courts or conflict between a state court and a federal court) but notes that the list isn’t exhaustive. Though vague as to the circumstances that would warrant approval of a petition for certiorari, the rule points out very explicitly that writs are “rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.” Rhode and Spaeth (1976) mention that criteria for having one’s case granted certiorari, such as having “special and important reasons [warranting review],” are simply a baseline. The process of deciding which case gets heard is a process that only the justices themselves understand. Process of Certiorari Perry (1991) lays out the general process that certiorari cases go through at the Supreme Court. If a petition meets the general guidelines, such as page-length, and number of copies, the petition is assigned a docket number. All of the petitions that are assigned docket numbers are then divided up among the justices who participate in the cert pool.                                                                                                                 2 See Appendix A 6 The cert pool, first proposed by Justice Lewis Powell, is composed of justices who review petitions for cert and may include as many justices as wish to participate. The cert pool allows the Court to work more efficiently in reviewing every petition that comes to the Court. In the 1986-1993 terms, Justice John Paul Stevens was the only justice who did not participate in the cert pool (Epstein et al 2007). The law clerks then prepare memos that contain summaries of the case facts, decisions below, opinions, the contentions of the petitioners and respondents, and make recommendations about cert. These memos are sent to the Chief Justice’s chambers and then distributed to the chambers of the associate justices. After distribution, the Chief Justice then adds cases to the discuss list. The other justices may add cases but cannot have cases taken off the list. The cases on the discuss list are discussed at the certiorari conference3 where the justices vote on whether to grant or deny. Following the so called “rule of four,” if a petition receives four votes to grant certiorari, the writ is granted and the Court will hear the case (Perry 1991). The number of cases that are actually granted certiorari is extremely low. Rhode and Spaeth found that only 10-15% of cases for which petitions for certiorari were filed were actually granted (1976). The high number of denials leads Perry to explain what he calls a “presumption against a grant.” In his interviews with clerks and justices, he found that justices generally look for reasons to deny certiorari. This is because there might be a general consensus on the Court that it is better to deny a petition because the issue presented in that petition will almost inevitably be raised to the Court again. Since the Supreme Court is concerned only with clarifying questions and not the facts of a case, it is not necessary for the                                                                                                                 3 A conference at which only the justices are present. 7 Court to be concerned with the case on an individual basis (Taft 1925). The facts of a case are already established and the decisions of the Court have implications for the rest of society in similar cases (Scalia 1989). The clearest denials are those petitions that only raise questions of fact (Perry 1991). It takes only one element of a case to make it uncertworthy, but it takes many things to make one certworthy (Perry 1991). A petition must usually contain some level of conflict at the circuit court level, importance on a national scale, and must concern each individual justice’s particular area of interest. Even Supreme Court justices have pointed out that each justice screens cases differently. For example, in his 1973 address to the First Circuit Judicial Conference in defense of the process by which cases are granted certiorari, Justice William J. Brennan explained that different justices who participate in the cert pool have different concerns and particular interests when reviewing cases. Thus the cases that are selected from the thousands of petitions every year should be considered indicative of the issues that the Court has deemed necessary to address. Brennan also mentioned that the number of cases that are granted review by the Supreme Court has remained relatively constant over the past couple of decades. This is not caused by a set number, but because this is the number of cases that are “certworthy.” Justice Brennan, being of the view the the Constitution is a living document, also commented that the cases that find their way onto the Court’s calendar are illustrative of changes within American society as a whole (Brennan 1973). Certiorari as a Strategic Point for Justices Many Supreme Court scholars have theorized that justices act strategically in the choices they make (e.g. Caldeira et al 1999; Epstein and Knight 1998; Brenner and Krol 1989). Voting on whether to grant or deny certiorari is arguably the most important decision 8 a justice can make. Glendon Shubert was one of the first political scientists to look at the certiorari stage as a strategic point for the Court (Shubert 1958). Shubert suggested that since it takes four votes to hear a case, the four justices who vote for certiorari can be organized into a certiorari bloc. The goal of that bloc is to convince one of the other five justices to vote with its opinion, which Shubert found statistically was not very hard to do. According to Shubert, the strategy of the certiorari bloc was to never vote to grant cert in which the petitioner was ideologically divergent from the bloc and to vote for their preferred petitioner in final decision on the merits. He concluded that if the certiorari bloc followed that strategy, their preferred outcome would be achieved 92% of the time. However, Shubert used the opinions in the decision on the merits to gather information about strategic action at the certiorari stage, and assumed that the justices not voting in his so-called cert bloc had no predisposition either for or against the petitioners, based on the rule of four, thereby dismissing the theory of strategic voting for over half of the Court (Shubert 1958). The problem with Shubert’s conjecture is that he was not able to use actual certiorari voting data in his research. This data was not available for the Court terms he researched. He also disregards strategic behavior of other justices by discounting justices’ votes that weren’t in the cert bloc. Using certiorari voting data for each justice who cast a vote in the certiorari stage would be a more effective method of measuring strategic behavior at this stage. Baum (1997) makes the case that justices act strategically; one particular point of strategic behavior is the case selection stage. Building on Shubert’s theory that the certiorari stage contains strategic behavior, Baum argues that justices might engage in what he calls long-term strategy, resulting in good relations with other justices that may make persuasion 9 in future cases easier. This strategy also results in establishing good relationships with the other branches to reduce the chance of reversal through policy-making. Long-term strategy is indicative of justices engaging in strategic behavior as a means of advancing their own policy goals. One might consider this to be similar to logrolling in Congress. Baum, however, posits that logrolling in Congress is a different process than strategic behavior in the Court. Strategic voting in the House and Senate is often sharp and distinct and occurs in defined stages of the policy process, such as amendment voting4. Justices, on the other hand, are able to act strategically at some stages of a case’s life on the Court while adhering to sincere behavior at other stages and are still able to achieve their desired outcomes. The long-term strategy is important for justices because it strengthens the institutional influence of the Court. Engaging in long-term strategy also increases the chance that a justice will be able to persuade other justices to join him in future decisions. Individual cases have short-term effects for the parties to the cases but have long-term effects on legal doctrine, so justices accordingly engage in long-term strategic behavior. It is also important to a justice’s long-term strategy to make decisions based on their predictions of possible future cases. In examining the ideology of the Court as a whole as it relates to voting on certiorari, Krol and Brenner (1989) found that the Court employs three specific strategies: error correction, prediction, and majority. They proposed that the error-correcting strategy is employed when a justice voted to grant certiorari with the intention of voting to reverse at the merit stage. However, this requires the presumption that their desired outcome would be                                                                                                                 4 Perry (1991) also claims that logrolling does not occur. He explains that in his interviews with clerks and justices on the Court none of his informants mentioned the behavior and some even explicitly stated that it does not occur. 10 achieved in the decision on the merits, creating the need for the prediction strategy. The prediction strategy relies on the individual justice’s belief that he will be in the majority opinion at the merit stage. Using this strategy, a justice will vote to grant certiorari if he believes that he will be in the majority, even if the decision below is congruent with his own beliefs, and will vote to deny if he doesn’t think his position will prevail. The last strategy that appears at the certiorari stage is the majority strategy. The majority strategy assumes that a justice sitting on a Court with an overall ideology that is similar to his will be more likely to vote to grant certiorari. A justice who is in the ideological minority of the Court is less likely to vote to grant because there is a smaller likelihood of that justice winning the case. A justice who is in the ideological minority will also find it harder to persuade other justices to agree with his position. Using data collected from both conservative and liberal courts, Krol and Brenner found evidence of all three strategies being employed by the justices. They found also that liberal justices were generally more prone to vote to grant cert than their conservative colleagues. However, it is important to note that Krol and Brenner only used cases where certiorari was granted in their dataset and did not use cases that were denied review. Granted cases illustrate issues that the Court deems important enough to hear. Similarly, denied petitions point to issues that justices feel are not salient enough to warrant the Court’s attention or are not ripe enough for the Court to decide. Using cases that were denied review would offer insight on the particular reasons that justices deny cert. Assuming that justices only behave strategically in the certiorari stage of granted cases is a fallacy and failure to include cases that were denied certiorari doesn’t account for the strategic behavior that accompanies voting to deny a case.