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Scholar's Corner

Fred Schauer hardly needs introduction; he is one of the world’s most prominent and influential legal scholars. He analyzes issues of first-order importance to the design of a well-functioning legal system. Schauer made his name as a First Amendment scholar, soon broadened his focus to include jurisprudence, and has also written extensively on Constitutional law more generally. Schauer’s current work incorporates his interest in the psychology of cognition and decision making that ties in nicely with his longstanding fascination with the role and functioning of rules in society. Thirty-six years after joining the academy, his scholarship remains innovative and protean.

In the following excerpt, Schauer evaluates how the Supreme Court chooses which cases to review. He argues that the Court generally decides either low controversy or low salience issues and avoids issues that are both high controversy and high salience (such as health care, bailouts of banks and auto companies, and the wars in Iraq and Afghanistan), which helps the Court retain a degree of legitimacy and respect.

Is it Important to Be Important?: Evaluating the Supreme Court's Case-Selection Process

119 Yale Law Journal Online 77 (2009)

Fred Schauer E-mail  E-mail   print  Print
As the Supreme Court’s caseload shrinks, from about 150 cases per year in the 1980s and early 1990s to about 70 now, concern has grown over whether the Court is leaving too many important cases undecided. But the extent to which the concern is justified depends in part on what we mean by “important,” and in part on whether it is important that the Supreme Court decide important cases. That the Court has traditionally taken on important cases and issues is a commonplace, but whether the commonplace is true depends on how we phrase the question. Whether what much of what the Supreme Court does is important is very different from whether much of what is important is done by the Supreme Court, and without knowing which we are asking, we cannot intelligently evaluate the Court’s case selection process.

The difference between how much of what the Court does is important and how much of what is important the Court does emerges upon even a casual glance at the daily newspapers. Although the Court has addressed important issues of gun control, campaign finance, capital punishment, punitive damages, presidential power, detention of enemy combatants, sexual orientation, and religion in the public sphere, among others, it has decided no cases determining the authority of a president to commit troops to combat outside of the United States. Nor has it directly decided cases involving health care policy, federal bailouts of banks and automobile manufacturers, climate change, and the optimal rate of immigration. And nothing the Court has decided for years is even in the neighborhood of addressing questions involving mortgage defaults, executive compensation, interest rates, Israel and Palestine, and the creation of new jobs.

The latter list is not randomly chosen. Rather, it is a list of the issues that dominate public and political discourse, a list surprisingly removed from what the Supreme Court is actually doing. Three years ago I noticed this gap between what the public cares about and what the Supreme Court does, and updating the data does not change the picture. When asked in non-prompted fashion to name the most important issues facing the country, Americans overwhelmingly name the economy, health care, wars in Iraq and Afghanistan, jobs, immigration, and education, as they have for the past eight years. Indeed, the list resembles those for much of the past three decades. Crime occasionally breaks into the top ten, but the most recent lists capture not only the long-standing importance of basic foreign policy and economic issues, but also the persistent non-appearance in the top ten (and usually even in the top twenty) of abortion, sexual orientation, race, gender, and the other issues that represent the salient part of the Court’s docket.

When importance is measured by what the public and their elected representatives think is important, therefore, and by what the government actually works on, the Supreme Court’s docket seems surprisingly peripheral. That is not to say that what the Court does is not important, but it is to say that its actual business is less important to the public and to the public’s representatives than lawyers and law professors tend to believe. And it is hardly clear there is anything wrong with this. By dealing either with low-controversy issues or with high-controversy low-salience issues, and thus by generally avoiding high-controversy high-salience issues, the Court may retain public confidence and empirical legitimacy necessary to secure at least grudging acquiescence in its most controversial decisions.

It is one thing to recognize the strategic value of avoiding most publicly important issues, but quite another to see much value in the Court’s avoidance of legally important issues, one measure of which would be the extent to which the issue appears in lower court litigation. If that is the measure, however, then there is evidence that the Supreme Court is little more inclined to take on legally important issues than publicly important ones.

It is impossible here to offer full empirical analysis and support for this claim, but consider as an example litigation under the First Amendment’s speech and press clauses, a great deal of which is represented by free speech issues arising in public employment and the public schools. Indeed, issues involving student and teacher speech, employee speech, organizational membership, and related topics vastly overwhelm the quantity of lower court First Amendment issues dealing with obscenity, indecency, incitement, press freedoms, and the numerous other topics that dominate the casebooks. Yet although schools and public employee cases far surpass other categories of First Amendment litigation in the lower courts, the Supreme Court takes surprisingly few such cases. In forty years it has taken only four involving speech in the public schools, three dealing with speech in colleges and universities, and twelve on the free speech rights of various public employees.

That the Supreme Court takes few cases in a number of high-litigation areas would be of less moment if the cases it did take were representative, and the decisions it issued useful in terms of providing guidance. But in fact neither of these occur. In Morse v. Frederick, for example, the “Bong Hits 4 Jesus” case, the Court, in deciding only its fourth student speech case ever and the first in more than a decade, took and decided a case that was highly unrepresentative of the student speech cases that bedevil the lower courts. And having taken the case, even the majority issued an opinion that was so narrow, so case-specific, and so idiosyncratically about alleged encouragement of drug use as to provide virtually no guidance to the courts that have to deal with the issue.

Morse is hardly unusual. On a large number of issues of regulatory law, constitutional law, criminal procedure, and others, the Court’s cases have been similarly unrepresentative and its decisions similarly unhelpful. And thus if frequency of litigation in the lower courts combined with unanswered questions about the state of the law is some indication of legal importance, then the Court’s record of taking legally important cases is little stronger than its record of taking socially important cases, but with far less justification.

The Court’s weak record of deciding legally important cases is likely a function of its inability systematically to gain needed information about legal importance. When appellate courts make decisions, they determine the outcome of the dispute between the parties and set forth a rule that governs large numbers of other acts and events. In order to perform the latter task adequately, however, courts need a sense of the array of events that some putative rule or standard or policy or test will control. The problem, however, is that courts find themselves suffering from a structural inability to obtain just that kind of information.

First, courts are of course not well situated to go out and actually research the field of potential application of some rule. Occasionally one of the parties might do this in a brief, but it is rare, and even at the Supreme Court level amicus briefs seldom serve this function. Second, everything we know about the availability heuristic and related phenomena tells us that a court trying to make a rule in the mental thrall of the particular case before it will likely assume, often inaccurately, that the case before it is representative of the larger field. Finally, and most importantly, the selection effect – the process by which cases with certain characteristics get to appellate courts and other cases with different characteristics do not – provides further distortion of information. Whenever the Supreme Court – or any court – sets forth a rule, standard, principle, or test, it creates the possibility of three different forms of behavior on the part of those the rule addresses. One is compliance, another is violation, and the third is “dropping out,” ceasing to engage in the behavior the rule seeks to regulate. So when the Court decided Miranda v. Arizona, it created a world in which some police officers complied by giving the required warnings, others violated by conducting custodial interrogations with giving warnings, and some stopped conducting custodial interrogations.

The selection problem arises because the courts will never see the dropout cases, and rarely see the compliance cases. By seeing only the violations, courts find themselves subject to severe information distortion. And because this phenomenon is exacerbated as litigation ascends the appellate ladder, the Supreme Court, even taking into account the information provided by amicus briefs, the research done by the Justices and their clerks, and the fact that the Justices read the newspapers, will be at an informational disadvantage in deciding which cases to decide and how broadly or narrowly to decide them.