Through a Glass Darkly: Examining the Court Through the Lens of Certiorari

Ben Johnson, Politics

Wed, 02/15/2017 - 2:30pm
012 Bendheim
Event Category: 
Graduate Students

LEGS, or "Law-Engaged Graduate Students," meets during the academic year to discuss a work in progress by one of our Graduate Associates. Academic papers, dissertation proposals, and dissertation chapters have been presented at these meetings, to an audience of fellow graduate students.

From Ben:  Despite its importance and potential for strategic decision-making, studies of agenda-setting at the Court are far behind our colleagues who study agenda-setting in Congress. But the process is no less political at the Court, and so this article applies the same tools used to study Congress to shed light on the Court. In particular, it shows the Court takes cases that move the law in a conservative direction. This is a matter of choice, not necessity. The justices’ clerks are able to set aside their own ideologies when recommending whether or not to take cases, so if they wished, the justices could as well. Once the existence of politics is clear, possible political strategies emerge. The current rules that govern the Court’s discretionary docket empower minority coalitions, improves oversight of lower courts, and keeps the Court at the center of American political life. Plus, it keeps the docket small. Accordingly, there is little hope the justices would do anything to reduce politics at the Court. This is problematic because discretion wielded in service of political agendas undermines the foundations of the Court’s power of judicial review. It may be up to Congress to find a way to cajole the Court to clean up its act. The article concludes with a novel suggestion to do just that.


Ben Johnson
Ph.D. Candidate, Politics
J.D., Yale Law School

Ben Johnson is a 5th year PhD student in the Politics department where he works on judicial behavior, public law, and American politics.