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Access to the Supreme Court 509

implications. The “political question doctrine” is another basis upon which the Court

may decide not to hear a case (as we’ll discuss in more detail later, these are cases that

the Court thinks are better handled by the elected branches of government). After

considering all of these criteria, 20 to 30 percent of the cases originally submitted for

the Court’s consideration are left. These cases are then winnowed to the final list with

the more specific guidance of Rule 10 in the Supreme Court rules (see Nuts & Bolts 14.2).

Of the criteria listed in Rule 10, conflict between appeals court decisions is most likely

to produce a Supreme Court hearing.

Internal Politics

Not much is known about the actual discussions that determine which cases will be

heard by the Court. The justices meet in conference with no staff or clerks. Leaks

are rare, but a few insider accounts and the papers of retired justices provide some

insights to the process. First, since the late 1970s most justices have used a cert pool,

whereby their law clerks take a first cut at the cases. Law clerks to the justices are top

graduates of elite law schools who help 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 decisions are up to

the justices, but clerks have significant power to help shape the agenda.

Second, the chief justice has an important agenda-setting power: he or she decides

the “discuss 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 justices. The decision

not to discuss certain cases is often justified because of the high proportion of frivolous

suits submitted to the Court.^41

Many factors outside the legal requirements or internal processes of the Court

influence access to the Court and which cases will be heard. Cases that have generated

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

executive branch. In cases in which the federal government is a party, the solicitor

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.

solicitor general

A presidential appointee in the

Justice Department who conducts

all litigation on behalf of the federal

government before the Supreme

Court and supervises litigation in the

federal appellate courts.

NUTS

& B O LT S

14.2

Deciding to Hear

a Case in the

Supreme Court

Rule 10 of the Rules of the U.S. Supreme Court says that a case is more likely to be heard when

• there is conflict between appeals court opinions or between a state supreme court opinion and
  another state supreme court on an important federal question,


• there is conflict between a federal appeals court and a state supreme court on an important federal
  question,


• a lower-court decision has “departed from the accepted and usual course of judicial proceedings,”


• a state supreme court or appeals court has ruled on a substantial federal question that has not yet
  been addressed by the Court, or


• a state supreme court or appeals court ruling conflicts with Supreme Court precedent.
  Rule 10 also states that certiorari is unlikely to be granted when “the asserted error consists of
  erroneous factual findings or the misapplication of a properly stated rule of law.”

Source: U.S. Supreme Court, Rules of the U.S. Supreme Court, adopted April 19, 2013, effective July 1, 2013,

http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf (accessed 5/27/16).

Law clerks, such as those seen here

with Justice Clarence Thomas, often

take a first cut at the cases and help

justices with background research.

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