The Supreme Court’s power to choose which cases it hears—a cornerstone of modern American law—has no actual legal basis in the way it is used today.
April 1, 2026
Original Paper
The Law of Certiorari
SSRN · 6502259
The Takeaway
It is widely assumed that Justices have 'absolute discretion' to ignore or pick cases for strategic or political reasons. This study of legal history reveals that the 'writ of certiorari' was originally bound by strict legal rules, meaning the Court’s current gatekeeping role is a modern invention that contradicts its own 'originalist' principles.
From the abstract
<p><span>The Supreme Court’s current certiorari jurisdiction is a powerful tool for judicial agenda control. The conventional wisdom holds that no law controls this discretion and that justices can consider strategic concerns and policy preferences in deciding which cases to hear. The result is a Court with the power to shape its docket and avoid (or seek out) politically fraught or doctrinally inconvenient cases. The Court’s use of this power has attracted criticism from all sides, attacking th