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2022

Legal history

Penn State Law

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The Origins Of Supreme Court Question Selection, Benjamin B. Johnson Jan 2022

The Origins Of Supreme Court Question Selection, Benjamin B. Johnson

Journal Articles

Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet, despite the significance of this practice, its origins are poorly understood. This is the first Essay to uncover the hidden history of the Court’s question-selection powers. It reveals an important---and possibly intractable---conflict between the Court’s legal authority and …