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The Discuss List: Agenda Building in the Supreme Court

Published online by Cambridge University Press:  01 July 2024

Gregory A. Caldeira  and
John R. Wright
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Abstract

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Each term 4,000 or more cases arrive at the doorstep of the Clerk of the Supreme Court of the United States. The Court narrows the field of decision from all possible choices to a smaller set of the most plausible ones; in a typical term, the Conference places 20 to 30 percent (around 500) of the cases filed on its “discuss list,” only 150 or so of which will be selected for plenary review. Here we investigate the composition, sources, and implications of the Court's discuss list. What criteria do the justices use in creating the list of cases for discussion in conference? Do these criteria differ from those ultimately applied in the decision to grant or deny a writ of certiorari? What, if any, implications does the operation of the discuss list hold for the composition of the agenda and the outcome of decisions on the merits in the Supreme Court?

We test two chief sets of hypotheses: (1) the justices weigh the various formal and informal criteria differently across the two stages of agenda building, and (2) despite differences in weighting, the justices rely on briefs amicus curiae as well as ideological predispositions to help them both to identify logical candidates for discussion and to decide whether to grant certiorari. We explain the variation in the weighting of the criteria as being largely due to the cost and accuracy of information and the different risk of errors during the two phases of choice.

Type
Research Article
Information
Law & Society Review , Volume 24 , Issue 3 , 1990 , pp. 807 - 836
Copyright
Copyright © 1990 The Law and Society Association.

Footnotes

This is a revision of a paper we presented at the 1988 annual meetings of the American Political Science Association, Washington, DC. We appreciate the research assistance of Peter Berryman, Kevin McGuire, John Felice, Jodi Govern, and William Johnson. Donald Chisholm of UCLA and Lawrence Baum of Ohio State commented on and helped us improve earlier versions of this article. The staff of the Manuscript Division at the Library of Congress helped us find our way around the papers of Chief Justice Earl Warren and Justices William Brennan, Harlan F. Stone, and Harold H. Burton. Grant No. SES 86-07291 from the Program in Law and Social Science of the National Science Foundation made the research reported here possible.

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