Teacher. Ben Johnson (Penn State) Guest Blogging
Arbitrary control of its own role is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of pre-selecting the issues to be considered has received almost no attention. This is particularly surprising since the Court overtly adds or subtracts questions in some of its most important and politicizing cases. Yet, despite the importance of this practice, its origins are poorly understood. This essay uncovers the hidden history of the Court’s question-selection powers and reveals an important – and perhaps intractable – conflict between the Court’s legal authority and its practice.
Scholars generally explain control of the Court’s agenda either as a power granted by Congress or as a natural component of the judiciary. Tracing statutory, legislative and common law histories, this essay presents a new challenge to these standard narratives. The Court’s custom of targeting specific issues is not rooted in the history of appellate practice, and Congress never intended, and probably never did, to give the Court supreme power to choose one’s own questions.
This history has profound implications for the Court’s appellate jurisdiction. The question-selection power rests poorly on both statutory law and the “case or controversy” requirement of Article III, risks doing a fundamental injustice to litigants, and draws the Court deeper into politics. , which puts its legitimacy at risk. Abandoning this practice would almost certainly limit the court’s ability to respond to burning political questions, but it could also help preserve the court’s legitimacy.
I look forward to Professor Johnson’s messages.