The Secret Nature of Supreme Court Case Selection

On Monday September 28, 2015, the United States Supreme Court will convene in private to determine the cases it will hear for the upcoming term. In a recent (September 24th) New York Times article, Stanford University law Professor Jeffrey Fisher indicates that out of “8,000 petitions that arrive at the court each year, the justices select about 75 cases.” The Supreme Court rarely provides reasons for their decisions to accept or deny writs of certiorari.

Professor Fisher remarks: “It is hard to think of a more significant power in the machinery of our democracy that is exercised more secretly.” As Professor Fisher explains, if four or more justices vote to hear the case, a review is granted, and if not the petition for writ of certiorari is denied. This is largely done without comment, in what amounts to secrecy.

On occasion, however, the justices do publish what is known as a “dissent from denial of certiorari.” But, this practice is entirely discretionary and only exercised when the justices have strong feelings as to why the case was not granted review. More often than not, there is no official vote tally or written opinion published on cases denied for judicial review.

In short, Professor Fisher suggests that transparency in the Supreme Court judicial screening process would be consistent with the principals of open democracy.