Supreme Court Agenda Setting: Strategic Behavior during Case by U. Sommer

By U. Sommer

A lot study is dedicated to the decision-making energy and precedent set through the ultimate court docket. much less cognizance, besides the fact that, is given to the strategic habit in the course of case choice. This booklet argues that case choice is completed strategically, and by way of a variety of standards - influencing its constitutional place and significance.

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Consequently, the mode of analysis of the doctrinal majority should be different from the way we understand the dispositional majority. The asset in the hands of the doctrinal majority is that they may form and structure the law of the land. This, however, depends on their ability to cooperate—they have to agree on a single majority opinion. One way in which the majority unravels—and the dispositional majority fails to turn into a doctrinal majority—is if a fifth justice on a minimum winning coalition writes a special concurring opinion.

Yet, the verbiage in the Rules (most importantly Rule 10) is anything but crisp. 1 The Supreme Court is a court of last resort. As such, it is in charge of consistency within the judicial hierarchy. This includes uniformity of jurisprudence and doctrine among the federal circuits and between those and the state courts. One key reason, therefore, why the Court would positively consider a request for review is a conflict between the circuits or between the federal courts and state courts (Sturley, 1989).

With arguments on both sides of the issue of whether the Rule of Four should be changed, in their indispensible guide to the practice of the Supreme Court Gressman et al. (2007) conclude: To abandon the Rule of Four, Perhaps in favor of a Rule of Five, might appreciably reduce the argument calendar and some of the Court’s decisional workload. ” Whatever the merits of these contrasting arguments, however, the Rule of Four remains firmly in place. (p. 327) I now turn to the strategic aspects (as well as other considerations) I expect to find in the decision of the Court to grant a writ of Certiorari in certain cases but not in others.

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