Deciding to decide: agenda setting in the United States Supreme Court

This research effort attempts to determine the process used in the Court to select cases for review. The primary data source is personal interviews with five U.S. Supreme Court justices, sixty-four former law clerks, seven D.C. Circuit Court of Appeals judges, four solicitors general, and four staff attorneys from that office. Other sources include a sample of petitions for review, workload statistics provided by the Court, and published data. The process is described in detail, demonstrating that some of the common wisdom is incorrect. It is argued that the process is relatively atomistic with most decisions being made absent collegial discussion or persuasion. Strategic voting is the exception, and when used, it is in identifiable situations. It is argued that the decision process is one of hierarchical, winnowing steps, and that there are basically two modes of decision making. Both modes have a series of steps, but the steps differ. The modes are labeled "jurisprudential" and "outcome." The former involves a series of jurisprudential considerations (such as circuit conflicts) that are dispositive irrespective of the predicted outcome of the case on the merits. The latter involves a series of strategic judgments. The choice of mode depends on one's caring about the outcome on the merits. Usually justices proceed in the jurisprudential mode, but at times, they act strategically. For any given case, one justice may use outcome criteria while another uses jurisprudential. "Outcome vs. jurisprudential" refines the notion of "political vs. legal" behavior, and that some justices are "ideologues" and others "judge-like." The agenda-setting process can be seen as a communication process. As such, comparisons can be drawn with other communication processes. Particularly useful are Robert Jervis' and Michael Spence's discussions of communication as indices and signals. Their two-fold categorization is exp and ed to universal indices, universal signals, particularistic indices and particularistic signals, and is applied to case selection.