ACCESS TO THE SUPREME COURT| 375ple is the line item veto, which Congress gave to President Clinton at the start of
his second term. Almost immediately some members of Congress challenged the
constitutionality of the law because they believed that the president should not be
able to veto part of a bill. The case was ultimately appealed to the Supreme Court,
but the justices refused to hear it: because the issue was not ripe, the members of
Congress did not have standing. That is, President Clinton had not yet used the
line item veto, so there was no controversy and the members had not been harmed.
Two months later Clinton used the veto, another case was fi led, and the Court
eventually struck down the law.^29
Thousands of cases every year meet the basic criteria. One very simple guide-
line eliminates the largest number of cases: if a case does not involve a “substan-
tial federal question,” it will not be heard. This essentially means that the Court
does not have to hear a case if the justices do not think the case is important
enough. Of course, the “federal” part of this standard is also important: if a case
is governed by state law rather than by federal law, the Court would decline to
hear the case.INTERNAL POLITICS
Since the late 1970s most justices have used a cert pool, whereby their law
clerks take a fi rst cut at the cases. (Law clerks to the justices are top graduates
of elite law schools who help the justices with background research at several
stages of the process.) Clerks write joint memos about groups of cases, providing
their recommendations about which cases should be heard. The ultimate deci-
sions are up to the justices, but clerks have signifi cant power to help shape the
agenda.
The chief justice has an important agenda-setting power: he decides the “dis-
cuss list” for a given day. Any justice can add a case to the list, but there is no
systematic evidence on how often this happens. Only 20 to 30 percent of the
cases are discussed in conference, which means that about three-quarters of
the cases that are submitted to the Supreme Court are never even discussed by
the Court. In most cases this is justified because of the high proportion of frivo-
lous suits submitted to the Court.^30
Many factors outside the legal requirements or internal processes of the Court
infl uence access to the Court and which cases will be heard. Cases that have gen-
erated a lot of activity from interest groups or other governmental
parties, such as the solicitor general, are more likely to be heard.
The solicitor general is a presidential appointee who works in
the Justice Department and supervises the litigation of the execu-
tive branch. In cases in which the federal government is a party, the
solicitor general or someone else from that offi ce will represent the
government in court. The Court accepts about 70 to 80 percent of
cases in which the U.S. government is a party, compared to about 1
percent overall.^31
Even with these infl uences, the Court has a great deal of discretion
on which cases it hears. Well-established practices such as standing,
ripeness, and mootness may be ignored (or modifi ed) if the Court
wants to hear a specifi c case. However, one fi nal point is important:
although the justices may pick and choose their cases, they cannot
set their own agenda. They can only select from the cases that come
to them.
IF HE OR SHE IS IN THE MAJORITY, THE
chief justice decides who will write
the majority opinion. Otherwise, the
most senior justice in the majority
makes the assignment. Since being
named chief justice in 2005, John
Roberts has spread opinion writing
duties fairly evenly among the
justices.solicitor general A presidential
appointee in the Department of
Justice who conducts all litigation
on behalf of the federal govern-
ment before the Supreme Court and
supervises litigation in the federal
appellate courts.cert pool A system initiated in
the Supreme Court in the 1970s in
which law clerks screen cases that
come to the Supreme Court and
recommend to the justices which
cases should be heard.