This post originally appeared at the Volokh Conspiracy.
Buried in the commentary to the Supreme Court’s new Code of Conduct is some never-before-disclosed information about how the Court selects its cases for plenary consideration. It’s only two sentences, but there’s a lot to be mined from it. Here is the passage (on p. 11):
The Court receives approximately 5,000 to 6,000 petitions for writs of certiorari each year. Roughly 97 percent of this number may be and are denied at a preliminary stage, without joint discussion among the Justices, as lacking any reasonable prospect of certiorari review.
Preliminarily, the Court’s reference to “approximately 5,000 to 6,000 petitions for writs of certiorari [received] each year” does not tell the whole story. A decade ago, according to the Court’s official statistics sheets, the number was above 7,000 (7,509 in the 2012 Term). But the number has trended downward since then, and in the most recent term (2022) the total number of new filings was under 4,200 – about 1,250 paid cases and about 2,900 in forma pauperis (IFP). (The statistics sheet is page 2 of each PDF.)
We can assume that the commentary to the Court’s new code was written with some care. What do the Justices mean when they say that about 97 percent of the petitions “are denied at a preliminary stage, without joint discussion among the Justices?” In all likelihood, this is a reference to the “discuss list.” (If someone has another idea, I’d like to hear about it.) Chief Justice Rehnquist explained the process in his book The Supreme Court, published in 2001 (pp. 234-35):
Shortly before each [conference of the Justices], the Chief Justice sends out a list of the petitions he wishes to have discussed. After the Chief’s “discuss list” has come around, each of the Associate Justices may ask to have additional cases put on this list. . . . The petitions . . . that are not discussed at conference are denied without any recorded vote. . . . [The] great majority of petitions . . . are never even discussed at conference and are simply denied without being taken up by the justices as a group.
So when the Court says that 97 percent of the petitions “are denied . . . without joint discussion,” it is probably telling us that 97 percent of the cases do not make it to the discuss list—and that only 3 percent do.
Four points about the discuss list deserve attention. First, the discuss list today represents a considerable dropoff from two or three decades ago. In his 2001 book (and in the first edition published in 1987), Chief Justice Rehnquist said that “[i]f at a particular conference there are one hundred petitions for certiorari on the conference list, the number discussed at conference will range from fifteen to thirty.” Even the lower number is five times the percentage given (implicitly) in the Court’s commentary on the code.
Second, we need to translate the current percentage to numbers. For the 2022 Term, that would be about 125 cases. To put that number in perspective, the number of cases granted in the 2022 Term was 60. Thus, the Court could have granted cert in every case on the discuss list, and the plenary docket would still be smaller than it was during most of the Burger Court years (about 150 cases).
Third, the percentage of cases on the discuss list that are granted is higher today (perhaps much higher) than it was under Chief Justice Rehnquist. This could be because the individual Justices have all internalized pretty much the same criteria for grants. Or perhaps there are fewer idiosyncratic requests from a single Justice to add cases to the list that will never get the four votes required for a grant.
Finally, we would like to know what the cases are that make it to the discuss list but not to the plenary docket. (We know some of these—the cases in which one or more Justices issue a statement or publish a notation about the denial of certiorari. But in the 2022 Term, those accounted for only about half the number suggested by the Court’s statement.) The discuss list is not made public, but a close approximation may be available—the relists, which are tracked by veteran Supreme Court advocate John Elwood at Scotusblog.
As Elwood explains, “[w]hen a case is relisted, the justices do not grant or deny review, but instead will reconsider the case at their next conference.” So the relists must be a subset of the discuss list. No case would be relisted if it had not been first placed on the discuss list, but some of the discuss list cases may be denied at the first conference for which they are listed. We just don’t know how frequently that happens. Still, the relists would give us as good a picture as we can get of the cases that make it to the discuss list but not to the plenary docket.
It would be a useful project to analyze the relisted-but-denied cases from the last few terms and see what patterns emerge. For example, to what extent do the cases have ideological valence? How often do the respondents point to apparently serious “vehicle” problems?
A larger project would also ask about cases with amicus briefs at the certiorari stage that were denied without relisting.
A quarter of a century ago, I published an article seeking to explain “the shrunken docket of the Rehnquist Court.” The time is ripe for someone to explore the shrunken discuss list of the Roberts Court.
(Thanks to John Elwood and Matt Hellman for comments on an earlier draft of this post.)
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