When and Why the Supreme Court Grants Cert
February 28, 2020
The Supreme Court justices and their clerks examine thousands of certiorari petitions annually, then grant about 70 of those petitions for oral argument. Their decisions about what is decided shape national discourse, and addresses some of the country’s most pressing legal and partisan controversies. What drives decisions about which cert petitions to grant is a subject of frequent debate among advocates and academics. There is a school of thought that when lower courts go too far afield the Supreme Court makes a correction, which is often a decision based on ideology. Other scholars argue that the cert process is a way to identify cases of high legal importance, which is what the justices want to devote their energy to doing. In an article on Scotus Blog, three law professors present a third interpretation, they call the “Odd Party Out” theory of certiorari. It predicts that cert is more likely to be granted when; A) there is a large ideological distance between the two litigating parties, which is evidence of political conflict and a case’s political salience; B) there is a large ideological distance between the panel of appeals court judges that decided the case and the party petitioning the court for cert, because it raises the possibility of ideological bias against one of the parties. The Odd Party Out theory combines those two intuitions, and can be stated thusly: Cert is most likely to be granted when the petitioner is ideologically distant from both the lower court panel hearing the case and the respondent.
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