Many have argued that the Supreme Court’s process for choosing cases is too secretive, allows too much influence to the Court’s clerks, provides too many opportunities to business interests and too little opportunities to public interests, and should be changed.

To alleviate some of these concerns, scholars have proposed changes to the Court’s certiorari process. The proposals have ranged from forcing the Court to grant more cases, modifying the rule of four to three, and creating a Certiorari Division tasked with choosing cases for the Court.

But few scholars have tackled how to change the Court’s certiorari process in a way that will create transparency and public accountability. University of Washington Professor Kathryn Watts’ forthcoming article, Constraining Certiorari Using Administrative Law Principles, does just that.

Professor Watts proposes several changes to the way the Court currently handles certiorari. One would require Congress to pass legislation spelling out the factors the Court should use in granting certiorari. Another proposal is for the Court to change the cert process itself, by providing reasons for denying certiorari or disclosing its votes on certiorari. These later procedures, Watts contends, offer the “most promising means of reform.”

I contacted Professor Watts to ask her about some of the proposals in the article.

Shon: Professor Watts, how did you come up with the idea to write this article?

Professor Watts: I teach Administrative Law, and my research focuses primarily on administrative law issues. This means that I spend a great deal of time thinking about procedures and process, as well as means of constraining delegations of legislative power given to administrative agencies. I also clerked at the U.S. Supreme Court for Justice Stevens in OT02, and I teach a U.S. Supreme Court Seminar.

This project merges my interests in administrative law and my interests in U.S. Supreme Court decision making. The article came about because—as I was teaching students about the Court and the cert process—the administrative law professor in me was really struck by how unconstrained the Court is in the case selection process, as well as by the lack of statutory factors to guide the Court’s cert-stage discretion. I started thinking narrowly about whether Congress’s decision to delegate the case selection process to the Court violated the so-called “nondelegation” doctrine that is familiar in administrative law circles, and then I broadened the project to think more generally about what light administrative law’s lessons might shed on how we might constrain the Court’s cert discretion.

Shon: You offer some great proposals for changing how the Court decides petitions for certiorari, and certainly your proposals have the advantage of “opening-up” what is a very secretive process. But why should the Court’s cert process be public rather than secretive?

Professor Watts: My main argument for greater transparency, monitoring and accountability in the cert process stems from the fact that the Court only exercises tremendous docket setting discretion because Congress chose to delegate to the Court docket setting powers. For the first one hundred years of its existence, the Court was a Court of mandatory jurisdiction. Then beginning in 1891, Congress started to delegate away to the Court some discretion over its docket. My view is that this delegation of docket setting power from Congress to the Court raises many of the same concerns as congressional delegations of discretion to administrative agencies. In other words, both certiorari and administrative law involve the same underlying concerns about accountability and reasoned decisionmaking that arise when Congress—a deliberative and democratically accountable branch—delegates broad discretion that it could exercise itself to a less accountable body. To deal with these concerns that have flowed from Congress’s decision to delegate, my take is that the Court’s cert process should be opened up a bit to enable greater monitoring, transparency and accountability.

Shon: Let me give you a hypothetical. If the Court was going to change its process for deciding certiorari and it was willing to adopt one, and only one, of your proposals, which change would you recommend?

Professor Watts: Vote disclosure. As I point out in my article, vote disclosure would not be as radical as it might initially sound. Some state courts already have rules that call for vote disclosure at the case selection stage, and some of the federal courts of appeals have rules that call for varying levels of vote disclosure at the en banc stage.

Shon: I really like your idea of the Court placing all the petitions on their website so that the public could become more involved. Do you think if the Court placed all the petitions on their website that the public would become more involved through amicus briefs? Or do you think that would only embolden the expert Supreme Court bar to file more amicus briefs on behalf of business interests?

Professor Watts: My hope is that it would encourage more diverse groups to file amicus briefs at the cert stage, not just members of the expert Supreme Court bar. My thought on this is that the expert Supreme Court bar already has a pretty good pulse on which cases are going up on certiorari. I’d like to see others have an easy way of identifying those cases that are going up on cert. If cert petitions were easy for the public to locate on the Court’s website, we might see more law professors, more public interest organizations, etc. filing at the cert stage in a broader swath of cases because it would be easier to identify cert petitions.

Shon: I think one hurdle in the public participating through amicus briefs is the current perception that the respondents in a case should never seek amicus support because the very act of an amicus brief being filed signals to the Court’s clerks that the case has importance. As a result of this perception, there is a significant edge to petitioners in the cert stage. Often the Court will have a petition and reply brief, several amicus briefs all supporting the petition, and only a brief in opposition presenting the other side of the case. Is there a way to prevent the Court from receiving only one view of the case at the jurisdictional stage?

Professor Watts: This is a tough one because as you correctly note, respondents often are reluctant to seek amicus support at the cert stage for fear it will signal the case is important. However, I can think of at least two potential ways of encouraging increased amicus support in favor of respondents as well as petitioners. First, the Court might make cert stage petitions readily accessible on the Court’s website to enable more amicus to notice cert petitions and to respond at the cert stage in favor of either petitioner or respondent. Second, the Court might actively invite amicus views at the cert stage to ensure a diversity of cert-stage views (not just invites to the SG’s office).

Shon: Well, thank you for taking the time to explain your article. I know that SCOTUS buffs will thoroughly enjoy reading your article and would love it if the Court would adopt just a few of your proposals.

Professor Watts: My pleasure. Thank you.