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Judicial Choice among Cases for Certiorari

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  • Alvaro Bustos
  • Tonja Jacobi

Abstract

How does the Supreme Court choose among cases to grant cert? In a model with a strategic Supreme Court, a continuum of rule-following lower courts, a set of potential cases for revision, and a distribution of future lower court cases, we show that the Court takes the case that will most significantly shape future lower court case outcomes in the direction that the Court prefers. That is, the Court grants cert to the case with maximum salience. If the Court is rather liberal (or conservative), then the most salient case is that which moves the discretionary range of the legal standard as far left (or right) as possible. But if the Court is moderate, then the most salient case will be a function of the skewedness of the distribution of ideologies of the lower courts and the likelihood that future cases will fall within the adjusted discretionary range. The extent of the political alignment of lower courts affects not only substantive lawmaking by the Supreme Court but also the earlier decision of whether to grant a given case cert to begin with.

Suggested Citation

  • Alvaro Bustos & Tonja Jacobi, 2019. "Judicial Choice among Cases for Certiorari," Supreme Court Economic Review, University of Chicago Press, vol. 27(1), pages 117-154.
  • Handle: RePEc:ucp:scerev:doi:10.1086/703407
    DOI: 10.1086/703407
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    JEL classification:

    • K10 - Law and Economics - - Basic Areas of Law - - - General (Constitutional Law)
    • K30 - Law and Economics - - Other Substantive Areas of Law - - - General
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General

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