Adam Chilton on the “Odd Party Out” Theory of Certiorari

Academic Highlight: The “Odd Party Out” Theory of Certiorari

Each year, the Supreme Court justices and their clerks pore over thousands of certiorari petitions, but they only grant about 70 of those petitions for oral argument. Not only do the petitions that are granted go on to shape national discourse, but they also address some of the country’s most pressing legal and partisan controversies. This makes understanding what drives the decisions about which cert petitions to grant a subject of frequent debate among advocates and academics.

So what does explain which petitions are granted? Some scholars argue that the court operates as a kind of “principal” overseeing its many “agents” (the lower courts). When lower courts go too far afield, these scholars argue, the Supreme Court steps in to gently (or not so gently) “correct” the lower courts. Other scholars argue that the court uses the cert process as a way to identify and explore cases that are of high legal importance—that is, the justices want to devote their energy to cases that they think will influence jurisprudential development.

An important subtext to these arguments is the significance of ideology. For the court observers who believe that the court is primarily interested in “correcting errors,” ideology is an important proxy for what constitutes an error. Quantitative research has shown, for example, that the court is more likely to grant cert in cases decided by a federal appeals court that is ideologically distant from the Supreme Court itself—suggesting that the justices more closely monitor lower courts that are either much more liberal or much more conservative than the Supreme Court. And, for the court observers who believe that jurisprudential development is driving cert decisions, ideology also matters: Some of the most important cases heard by the court are cases in which the political parties are in conflict.

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