Setting a Supreme Agenda - Evidence in the Justices' Papers for Strategic Considerations During Cert.

Do justices strategically think about the consequences of their decision on Cert? In this paper I analyze this question in light of material taken from Justices' private papers. The major source of information used here is documents produced by clerks for their justices and the general correspondence between justices and clerks. Several aspects of strategic behavior during Cert are demonstrated. First are strategic considerations that go way beyond One First Street N.E. At least when considering whether to review what they expect to be cases with weighty political ramifications, justices may think about the politics of appointment, the results of upcoming presidential elections, and the role of the Court in protecting certain groups in American society (e.g. women). The second facet of strategic behavior is in cases where justices would refrain from hearing a case for fear of the influence of the opinion written. Next, issues justices would like to see included in the opinion affect the choice of cases. This leads to the fourth facet of strategic conduct demonstrated here, in which justices' strategy is not limited to a single case. The result of their consecutive decisions to review a string of cases is the attrition of an objectionable precedent, which may even lead to the overturning of that precedent. Finally, when registering opinion dissenting from denial, it is not infrequent for Justices to lay out their view on the merits (both in terms of disposition and in terms of the doctrine that should result). Of particular interest are relisted cases, in which a dissent from denial had been registered following the first Cert vote, but the dissenter had an opportunity to actually influence the opinion when the case was granted full review in a second vote on Cert. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]