Discretionary Review and Undesired Cases: Lessons for Institutional Design
Shay Lavie†
ABSTRACT
Courts sometimes face cases that may result in adverse post-judgment official or public reactions.
Such real-world repercussions—e.g., open defiance by public officials—can be more costly for
the court than the benefit of hearing and deciding the case. In these situations the court may be
better off not taking the case from the outset. This paper discusses how courts deal with such
cases when they have the option to avoid adjudication—discretionary dockets. Using a stylized
model, the paper examines the implications of such discretion. In particular, it shows that broad
discretion may lead to judicial subordination to other branches, as the court employs a selection
strategy that is likely to favor the government. Further, the paper discusses the lessons for
institutional design. Those who want to induce judicial review, especially in controversial areas,
can narrow the discretion to select cases; a subtle way to do so is decentralizing judicial review.
1. INTRODUCTION
In the landmark case of Brown v. Board of Education (347 U.S. 483 [1954]) the Supreme
Court declared that state laws establishing separate schools for blacks and whites are
unconstitutional. While culminating in a unanimous decision, the justices in Brown were
deeply conflicted. Particularly, the justices worried about the real-world implications of
their decision. Southern states could defy the new ruling through a series of actions
ranging from taking ―evasive measures while purporting to obey‖ to ―complete abolition
of public schools‖ (Klarman 2004, p. 294, citing Justice Black and Vinson). From the
Court‘s perspective, such resistance would render the new ruling useless and perhaps
even counter-productive, bringing ―the court into contempt and the judicial process into
†
Assistant Professor, Tel Aviv University Faculty of Law. E-mail: [email protected]. I am grateful to
Adam Chilton, Alon Cohen, Yehonatan Givati, Barak Medina, Frank Michelman, Adam Shinar, Jennifer
Shkabatur, Matthew Stephenson, Mark Tushnet, and participants in the American, Canadian, and Italian
Law and Economics Associations Annual Meetings for helpful discussions and comments.
discredit‖ (Klarman 2004, p. 311, citing Justice Jackson). Though the Brown justices
eventually assumed the risk of adverse real-world repercussions, their fears proved
correct in the aftermath of Brown. Southern states did reply with massive and fierce
opposition, which allegedly ―risked severe injury to the power of the Court itself‖ (Law
2009, p. 783).
Brown is but one example of a small but important group of cases, in which a
legal decision may trigger ―perverse outcomes‖—real-world ―consequences that are
opposite of those intended by the Court‖ (Sunstein 2007, pp. 171–72). The unwanted
real-world consequences can, for example, be the result of officials‘ counter-reaction or
public outrage. As the discussions behind Brown suggest, the perception that courts take
into account future real-world outcomes is fairly conventional (for example, Eskridge
1991; Sunstein 2007; Vanberg 2006; Staton and Vanberg 2008; Clark 2011).
Anticipating such effects, the Court may pursue one of the following two options.
It can take the case, and manipulate the legal outcome such that the decision will trigger
no adverse reaction; alternatively, the Court can avoid deciding altogether, through the
use of the cert process or by employing doctrinal tools (e.g., justiciability) to dismiss
without deciding. Where judges are bound, at least to some extent, by legal and
institutional constraints, avoiding merits decisions is an easier way to duck controversial
cases. Indeed, there are numerous anecdotal examples of cases in which the Court
preferred to avoid deciding the very issues that were likely to lead to hostile real-world
consequences; and some empirical evidence likewise suggests that the Court modifies its
selection process when it faces a hostile Congress (Epstein, Segal, and Victor 2002;
Harvey and Friedman 2009; but see Owens 2010).
2
Against this backdrop the paper employs a simple, stylized adverse selection
model to examine the consequences of employing a selection process to adjudicate
cases—discretionary review. The analysis yields several interesting implications. First,
the selection process courts employ leads to unrepresentative dockets of adjudicated
cases. Some Brown-type cases are heard and trigger a hostile reaction; but more Browntype cases are dismissed at the discretionary review stage. Moreover, as governmental
defendants are the ones who typically hold the threat of an adverse post-judgment
reaction, the selection process creates an inclination to preserve the status quo. Of the
cases courts do select for adjudication, the success rate of the government is likely to
overstate its general success rate within the universe of cases; likewise, within the
adjudicated cases, petitioners‘ success rate is lower than it should be. Second, other
things being equal, the more discretion courts have the fewer perverse outcomes they
suffer, but the more biased is the pool of cases they actually adjudicate. Broad discretion,
then, need not lead to independence of the judiciary; rather, it may result in subordination
to other branches, as it encourages courts to avoid controversial cases that might end with
hostile reactions. This simple observation has been neglected by the literature. Third, due
to the informational problems that are inherent to the selection process, the model
explains why courts sometimes fail to avoid perverse real-world outcomes, destructive as
they may be. Fourth, the capacity of courts to manipulate the decision on the merits, with
some costs, in order to escape hostile real-world reactions does not qualitatively change
the results—courts should still prefer to altogether avoid unwanted cases.
Based on the model and the resulting implications, the paper takes a further step
and derives the ensuing lessons for the institutional design of systems of judicial review.
3
To the extent one believes in judicial review, especially in controversial areas, one should
constrain courts‘ discretion to avoid cases. And vice versa—one who thinks judicial
review is not socially valuable should attempt to provide courts with more discretion to
avoid tough cases. The paper discusses two major ways to control courts‘ discretion to
avoid cases. The first is simply curtailing discretionary jurisdiction, forcing courts to hear
more cases they do not want to. A more subtle and less intuitive way is to decentralize
judicial review. Where lower courts share the responsibility for reviewing legislation, as
in the U.S., the actual discretion of the Supreme Court to select cases for adjudication is
not unfettered. Because lower courts are often less affected by hostile real-world
repercussions, they are more likely to decide controversial cases. When they do so and
issue bold decisions, lower courts induce the Supreme Court to adjudicate the cases it
would otherwise attempt to avoid. Thus, diffusion of responsibility for judicial review
liberates judicial action. More broadly, discretionary jurisdiction and centralization are
substitute mechanisms to allow the judiciary to avoid resolving tough cases. A
comparative look reveals that indeed legal systems often implement one of these
mechanisms.
The paper draws on previous literature that formalizes the selection process in
light of real-world consequences (e.g., Vanberg 2006; Harvey and Friedman 2009), and it
makes the following contributions. First, it clarifies the assumptions behind the desire of
courts to avoid the merits, and considers the capacity of courts to manipulate the outcome
and its effect on the results. Second, and more importantly, the paper systematically
discusses the broader implications of the selection process. In particular, the paper
analyzes the implications that pertain to the bias that the selection strategy produces in
4
terms of merits decisions; and to the tradeoff between narrow discretion and the capacity
of courts to take controversial cases. Third, the paper demonstrates how the judiciary can
be contained through broader discretion. Integrating non-formal literature and insights
derived from a comparative perspective (Ferreres Comella 2004; Scheppele 2006;
Michelman 2011), the paper explains why decentralization of judicial review can actually
induce the judiciary to take controversial cases.
The paper proceeds as follows. Section 2 provides background for the practice of
discretionary review at the Supreme Court and the risk of negative real-world outcomes.
Section 3 is descriptive, formalizing the selection process within a stylized model.
Section 4 discusses the implications of the results. Section 5 applies these observations to
the institutional design of constitutional and supreme courts. Section 6 concludes.
2. BACKGROUND
The following paragraphs provide a more comprehensive background on the Supreme
Court‘s discretionary review and its desire to avoid perverse outcomes.
2.1. Discretionary Review
All courts have, de facto, some discretion to hear the cases they want to. Judges, in the
Supreme Court as well as lower courts, can employ jurisdiction doctrines to avoid
resolving hard cases. Notable examples are the requirements of standing, ripeness,
mootness, and political question (Bickel 1986, pp. 111–98; Sunstein 2007, pp. 159–60).
These and other avoidance techniques notwithstanding, formal discretionary jurisdiction
is the embodiment of this phenomenon—it is simply the easiest way to dispose of cases
5
without deciding the merits. This section therefore focuses on the most relevant context
for this paper—Supreme Court litigation.
Since the 1925 Judiciary Act, cases, by and large, are not heard at the Court as a
matter of a right. Rather, the Court has to grant a petition for a writ of certiorari.
Practically, the Court‘s discretion is wide; it accepts for review a meager fraction of the
petitions and does not explain its selection.
How does this selection process work? It is common to say that it consists of
various flexible considerations. As the Court can observe at this preliminary stage, to
some extent, the merits of the case (Cordray and Cordray 2004, pp. 397–406; Gunther
1964, p. 13), these considerations are both technical and substantive. The following is a
non-exhaustive list of criteria the Court uses to select cases. One set of considerations is
more technical, e.g., the physical format of the petition. Likewise, the Court ought to
have jurisdiction to review the case (for example, the case raises a federal law question)
(Baum 2010, pp. 90–91). Another consideration is a conflict between lower courts—
when a circuit split exists, the Court is more likely to grant a review (Baum 2010, p. 91).
Other considerations are more substantive. One criterion, for example, is the importance
and novelty of the issue, as the Court prefers to decide more important cases (Baum
2010, pp. 91–92). Justices are also more inclined to hear cases when they can advance
their policy preferences (Epstein, Segal, and Victor 2002, p. 401). Finally, the Court
employs the selection process to avoid hard cases (Maltzman, Spriggs, and Wahlbeck
1999, p. 50). The Court, for example, attempts to avoid ruling on politically controversial
issues, their importance notwithstanding (Epstein, Segal, and Victor 2002, pp. 411–12).
6
As will be elaborated below, politically controversial cases embody the perverse
outcomes category, which the Court aims at avoiding. Of course, the desire to shy away
from problematic cases is not the only, or the most important, consideration the Court
takes into account. But it is fair to say that this factor does influence the Court‘s decisionmaking, especially in important, central cases, and where the ruling affects the
government (Carrubba and Zorn 2010, p. 812; Maltzman, Spriggs, and Wahlbeck 1999,
p. 53 n. 14; Sunstein 2007, pp. 177–78, 182). The following paragraphs demonstrate this
influence.
2.2. Perverse Outcomes
I define perverse outcome cases as those in which the legal outcome of the case brings
more real-world harm than good (from the court‘s perspective).1 For the purposes of this
paper harmful real-world outcomes can take various forms: from a congressional
response that simply overrides the Court‘s ruling (and establishes a worse status quo,
from the Court‘s perspective); to official resistance that undermines the decision; to
public outrage that thwarts the execution of a bold judgment or any other hostile reaction
against the court following its ruling. Perverse outcomes, in short, are consequential
considerations against deciding a case in the desired legal manner. Typically, perverse
outcomes follow decisions that invalidate the current status quo; decisions that maintain
1
There may well be decisions that bring seemingly harsh outcomes, but are nonetheless worth pursuing
from courts‘ cost-benefit calculations. Possible examples are decisions that lead to beneficial results only in
the long run. In this paper I focus on the specific group of cases that do not pass this broad real-world costbenefit test.
7
the status quo are less likely to face hostile congressional reaction, obstacles to
implementation, or public outrage (Sunstein 2007, pp. 196–99).
Real-world outcomes can be particularly problematic for the judiciary, which is
―armed only with gavels,‖ and lacks the powers of purse and sword (Stephenson 2003, p.
60). As this institution depends on public acceptance, it strongly disfavors overt noncompliance (Law 2009, p. 781). In addition to non-compliance, the judiciary is
vulnerable to adverse popular reaction, which interferes with its efforts to maintain
legitimacy (Sunstein 2007, p. 172). Negative real-world consequences do not amount
only to a loss of public legitimacy. In some cases, hostile reaction can take the form of
reactionary legislation, impeachment, and budget cuts (Friedman 2005, pp. 313–14;
Rosenberg 1992). The Court‘s opposition to the New Deal, for example, ―provoked a
political backlash that nearly destroyed the Court‖ (Goldsmith and Levinson 2009, p.
1833). Prudent courts should therefore aim at reducing prospective, counter-productive
confrontation (Sunstein 2007, p. 172; Goldsmith and Levinson 2009, p. 1834).
There is empirical evidence that the Court generally restrains itself when facing
congressional hostility (Clark 2011). Likewise, the strong incentives to avoid politically
controversial decisions do appear to affect the way judges decide (Goldsmith and
Levinson 2009, p. 1834; Friedman 2005, pp. 314–16). In particular, empirical evidence
suggests that such consequential considerations affect the selection of cases for
adjudication (Epstein, Segal, and Victor 2002; Harvey and Friedman 2009). The selection
process is especially vulnerable to real-world considerations, as justices typically have
more leeway at this stage (Owens 2010, p. 412). If review is granted, it will be harder for
justices to ―modulate their views,‖ manipulate the analysis, and avoid a legally correct,
8
but politically problematic, ruling (Epstein, Segal, and Victor 2002, pp. 430; Sunstein
2007, pp. 168–69). Hence, judges should first attempt to dismiss, pre-merits, unwanted
cases.
To illustrate the weight given to anticipated perverse outcomes when deciding
whether to grant discretionary review on the one hand, and the desire to dismiss
problematic cases without adjudicating the merits on the other hand, consider a clerk‘s
memo in a civil rights case in the aftermath of Brown2:
In view of the difficulties engendered by the segregation cases it would be wise judicial
policy to duck this question for a time. If cert. was involved our course would be clear.
But what to do here? . . . I don‘t think we can be honest and say that the claim is
unsubstantial. (Provine 1980, pp. 59, 61)
These considerations are especially relevant to public law cases, where adverse
real-world official reaction is a more significant problem (Goldsmith and Levinson
2009). Similarly, judicial concerns about public outrage are more pertinent to highprofile, more visible constitutional cases. For these reasons, the simple model presented
below may particularly explain how supreme courts deal with high-profile, public law
cases.
3. MODELING THE SELECTION PROCESS
While this paper is inspired by the foregoing background, borrowing the notion that
judges would like to dismiss undesired cases where they can easily do so, this section
attempts to formalize the selection process courts employ. The goal of this section is thus
descriptive; it discusses how courts use their discretion to avoid hearing unwanted cases.
To do so, it employs a stylized adverse selection model.
2
The Court eventually declined to resolve the case (Naim v. Naim, 350 U.S. 985).
9
Under this description, the court deals with cases in which a petitioner challenges
the government. The cases differ along two relevant dimensions. The first dimension is
the type of the case, its propensity to lead to perverse real-world consequences. I assume
here two types of cases: those that potentially lead to a hostile real-world reaction and
those that pose no implementation problem (peaceful-reaction cases). The court cannot
distinguish between these two types (Carrubba 2005, p. 671). The second dimension is
the merits of the case: petitioners can have weak or strong cases. I focus on the general
case, where adverse real-world reaction only stems from a change in the status quo, and
there is no substantial harm for courts from decisions that preserve the current state of
affairs (Sunstein 2007, pp. 196–99).3 For illustration purposes, the petitioner challenges
the status-quo, and the government represents the desire to maintain the status-quo;
extending the model to cases in which the petitioning party wants to keep the status
quo—e.g., where the government appeals—is straightforward. Likewise, one can think of
parallel situations in which the party that benefits from the status quo is not necessarily
the government.
Upon presenting the setup of the model, I discuss the scenario in which the court
adjudicates all cases. Then, I present the first best, from the court‘s perspective: complete
information as to both dimensions. I proceed to demonstrate the second best, where the
court lacks perfect information regarding these two dimensions.
3.1. Basic Setup
3
While there might be atypical cases, in which harmful consequences follow a decision that changes the
status quo, one can easily extend the analysis to account for this group of cases.
10
There are three stages, as Figure 1 shows:
Figure 1. The sequence of the model
At the first stage the court decides whether to hear or dismiss the case.4 In
principle, courts prefer to take cases: the benefit of deciding a given case is D, and the
utility of dismissing is normalized to zero. At the first stage, the court has some, but not
complete information with regard to the merits of the case and its propensity to trigger a
hostile reaction. In case the court takes a case for consideration, the merits are fully
revealed at the second, adjudication stage. I assume here that the merits are exogenous
and have to be truthfully decided; as will be shown later, the results are qualitatively
similar when this assumption is relaxed and judges are able to manipulate, with costs, the
legal outcome.5
The third stage is the post-judgment consequences. Under the model, only
decisions that change the status quo—where the government loses—face the risk of
adverse real-world reaction. Hence, if the petitioner wins a hostile-reaction type of case,
4
The court in the model represents a single decision-maker—I do not discuss circumstances in which a
minority of the court can force the remaining judges to take cases they would prefer to dismiss.
5
The results hold because manipulating the merits is generally more costly for judges than dismissing the
case at the outset (Sunstein 2007, pp.168–69).
11
the court suffers costs K, which are greater than the benefit of hearing the case (K>D); if
the case is of peaceful-reaction type there is no harm to the court. Hence, the court would
be better off avoiding the hostile-reaction type of cases in which petitioners win, as these
cases trigger the harmful real-world consequences K. I treat D and K in a broad manner
which incorporates legal, institutional, and ideological considerations.6
To be clear: the distinction between pre-merits discretionary review (stage 1) and
merits adjudication (stage 2) is definitely a simplifying assumption. This assumption,
though, builds on plausible perceptions of judicial decision-making. First, judges are
unable to costlessly achieve any legal result they want to. Judges are—at least to some
extent—constrained by the legal and factual background of each case. ―[S]ome legal
arguments might be so difficult or costly to construct that for practical purposes the judge
experiences the law as binding‖ (Stephenson 2009, p. 200). Second, these constraints are
generally more binding on the merits, where judges are required to more thoroughly
justify their decision-making. In earlier procedural stages, in contrast, judges have more
leeway to avoid a certain outcome. Hence, courts should prefer to dismiss unwanted
cases at the earliest, pre-merits phases, through the use of the cert process or by
employing ―passive virtues‖ to avoid resolving the merits (Epstein, Segal, and Victor
6
Therefore, the benefit of deciding a given case D can stem from factors such as: getting the right legal
decision, implementing courts‘ ideology, and the institutional gain from deciding important issues. As
discussed before, post-judgment harm K can be: a legislative reaction in the form of an unfavorable statute,
which creates a worse policy from the court‘s perspective; legitimacy loss due to pervasive noncompliance; political backlash against the judiciary. Within this broad interpretation of courts‘ utility, then,
the model pertains to situations in which the potential harm from post-judgment reaction K is greater than
the benefit of deciding the case D.
12
2002, pp. 399, 401, 430; Sunstein 2007, pp. 168–69; Owens 2010, p. 412; Vanberg
2006). On the other hand, the later the adjudication stage, the more information the court
has regarding the merits. As judges have at the early, pre-merits stages ―a rudimentary
knowledge of the relevant . . . details,‖ they can only form ―an initial intuitive impression,
or ‗hunch,‘ about how the case should come out‖ (Stephenson 2009, p. 201).7 Judges,
then, trade better information regarding the merits for the ease of dismissing. The
distinction between pre-merits discretionary review (in which judges can easily dismiss
though they are uncertain about the merits) and merits adjudication (where judges know
the merits but avoiding an unwanted decision is more costly) captures, albeit roughly, this
description.
Similarly, the model distinguishes between the adjudication stage (stage 2), in
which judges resolve the uncertainty regarding the merits, and the real-world phase (stage
3), which reveals whether the case triggers unwanted consequences. Put differently, I
assume here that the second phase adds no relevant information with regard to the
prospective, real-world effects—presumably, better knowledge of the merits is
immaterial to the real-world effect of the decision. Even if adjudication adds some realworld knowledge, it seems plausible to believe that the adjudication phase focuses on the
merits rather than the prospective real-world effects.8
7
While the model accounts for the simple case of two stages—discretionary and merits—one can think of
several intermediate stages, such as dismissing certiorari as improvidently granted and dismissing on
jurisdictional grounds. The general idea remains the same: the later the stage is, the more information the
court has, but the more costly dismissals become for the court.
8
To the extent the merits phase adds valuable information, judges may be more inclined to reach it.
13
3.2. All Cases
Against this backdrop, one can predict the behavior of the court in certain settings. The
benchmark is the scenario in which the court adjudicates all cases. Petitioners win in a
fraction p of the cases; conditional on the petitioner winning the case, the probability of a
hostile reaction is h. Therefore, the unwanted cases, the cases in which the petitioner wins
and a hostile reaction follows, occurs with probability p*h. Other cases, i.e., losing cases
of all types and winning cases of peaceful-reaction type, comprise a fraction 1-p*h of the
population. Hence, when adjudicating all cases, the court expects the following utility:9
Uac=(1-ph)*D + ph*(D-K)=D - phK
(1)
The first and second terms indicate adjudicated cases that end in peaceful and
hostile real-world consequences (a gain of D and D-K, respectively). No cases are
dismissed. The win rate under this scenario is equal to p, the fraction of winning cases in
the population. The number of actual hostile post-judgment reactions is p*h.
3.3. First Best
In case the court can observe, at the discretionary phase, both the case‘s type (the
prospective real-world reaction) and the precise legal merits, the court can achieve an
ideal result. In this first-best scenario the court takes all cases in which petitioners lose, as
well as peaceful-reaction cases in which petitioners win. The court dismisses winning
petitioners with hostile-reaction cases. The court‘s utility is:
Ufb=(1-p)*D + p(1-h)*D + ph*0=D*(1-ph)
9
The population of cases is normalized to one.
14
(2)
The first term indicates cases in which petitioners lose; the second winning cases
of peaceful-reaction type. Both entail utility D. The third term indicates winning cases of
hostile-reaction type, which the court dismisses at the discretionary phase (with zero
utility). Overall, 1-ph cases are taken by the court, out of which p(1-h) are cases in which
the petitioner wins. This win rate is lower than the average win rate in the population—
the court adjudicates the hostile-reaction type of cases only when petitioners lose.10
Likewise, the pool of avoided cases consists of more cases in which petitioners would
have won. By definition, there are no real-world adverse reactions in this scenario.
3.4. Second Best
Now the court cannot observe the likely real-world reaction; nor can it know for sure the
legal outcome before actually adjudicating the case. However, and following the
foregoing description of judicial decision-making, the court can infer at the first stage, to
some extent, the merits of the case and its propensity to trigger harmful real-world
consequences. Suppose the court can infer, for each case, the probability in which the
petitioner wins and the odds of a hostile reaction in case the petitioner wins—pi and hi.
Hence, the value from adjudicating each case is given by the benefits of deciding
minus the risk of harmful reaction: D - pihi*K. For each dismissed case the court gets
nothing. Hence, the court will only take cases that satisfy the following cutoff:
D - pihi*K >0, pi hi 
10
The win rate is thus
D
K
(3)
1 h
p (1  h )
, which is necessarily lower than the general win
 p*
p (1  h )  (1  p )
1  ph
rate, p.
15
In other words, the court implements a certain threshold depending on the
perceived merits of the case pi and the likely hostility hi. It takes only cases that seem not
too meritorious (from the petitioner‘s perspective) and not too harmful. The win rate in
the group of adjudicated cases is lower than the average win rate in the population, as the
court dismisses some relatively meritorious cases. Similarly, this selection process
reduces actual prospective incidents of hostile real-world response to the court‘s rulings.
This equation also implies that, other things being equal, when real-world
outcomes get more destructive (K increases), the court would tend to take weaker cases,
from the petitioner perspective (lower pi), and less cases that may trigger unwanted realworld consequences (lower hi). On the other hand, when it is more valuable to adjudicate
the case than to dismiss (D increases), then more cases are heard, and the court can take
even cases that are, on average, not so weak; and cases that seem more risky, with regard
to their real-world effect. Similarly, when the court believes that the case it sees is less
likely to generate hostility (lower hi), it can allow stronger cases on the merits (higher pi).
And vice versa—when the court believes that the case is weaker on the merits (lower pi),
it can risk and take cases that seem more prone to hostility (higher hi).
This equation also implies that the court maintains the selection process where it
knows for sure one of the relevant dimensions—the merits or the potential real-world
hostility. To illustrate consider an extreme case in which the court knows for sure
whether the case will trigger hostile reaction in case of a change in the status quo. Given
this knowledge, the court happily adjudicates all cases that will not produce hostility (1-h
of the cases). With regard to the remainder, the fraction h in which a decision against the
government would face a hostile post-judgment reaction, the court again conducts a
16
selection process. Suppose the court knows it is dealing with a hostile-reaction case
(hi=1). It follows from the previous equation that when the odds of a petitioner‘s win are
sufficiently small, the court is still better off taking the case (and risking a hostile
response in case the petitioner eventually wins). Hence, with respect to cases that the
court identifies as potentially hostile, the court sets the following threshold, litigating all
potentially hostile cases below it:
pi 
D
K
(4)
As the court knows the likely real-world reaction, it adjudicates hostile-reaction
cases only when they are coupled with very weak cases, in which the government is
likely to prevail.11 Note that even under this scenario, where the court possesses complete
information regarding the volatility following a change in the status quo, the court would
not eliminate hostile reactions. The reason is that courts lack, at the discretionary review
stage, complete information regarding the other dimension, the legal merits of the case. In
some cases in which courts believe, pre-merits, that the petitioners‘ arguments are weak,
the petitioners ultimately prevail. These are the rare cases that lead to a hostile real-world
response, destructive as it may be, even with complete information regarding the postjudgment repercussions. Brown perhaps fits this pattern: though one might have predicted
beforehand that the Court would probably sustain school segregation, the justices
11
D
The threshold must be lower than the case in which the court does not know h for sure: p 
is
i K
D
necessarily lower than p 
.
i hK
i
17
deliberation over the case reached a different legal result.12 Had they known they were
going to invalidate school segregation, the argument goes, the justices would have
preferred to dismiss the case.
A similar logic applies to scenarios in which the court perfectly knows the merits
(but not the potential hostility). The court would takes all losing cases; and some winning
cases that seemingly, at the discretionary review phase, face low risk of real-world
hostility (following equation (3) Error! Reference source not found.Error! Reference
source not found.the court will only take cases in which hi 
D
). More generally, as
K
these examples illustrate, the better information the court has, the more effectively it can
screen at the discretionary phase.
3.4.1. A Note on the Manipulation of Cases
Courts may be able to manipulate the legal results during the adjudication phase.
A court might do so when, after selecting a case for adjudication, the court reveals that
the case should have been dismissed. The preceding results, however, are qualitatively
the same even if courts have the capacity to manipulate the outcome. Intuitively, it is
easier to dismiss at the beginning than to manipulate after revealing the merits. To
illustrate, consider the scenario in which the court may manipulate the outcome in all the
cases in which it discovers, during the adjudication stage, that the petitioner likely wins.
12
Indeed, according to some estimates the initial vote at the Court was against invalidating school
segregation (Klarman 2004, p. 300). Two years later, with a new Chief Justice, Brown ended in a decision
against school segregation. Likewise, at the time ―traditional legal sources . . . pointed more toward
reaffirming [the constitutionality of school segregation]‖ (Klarman 2004, p. 300).
18
For each manipulated case, the court suffers costs -M. If it does not choose to manipulate,
the expected utility from such a winning case is hi(D-K)+(1-hi)D=D - hiK.13 Hence, the
court should manipulate above a certain cutoff: when  M  D  hi K , which results in a
manipulation threshold of hi 
DM
. In other words, when a case seems to be too
K
risky, in terms of its propensity to trigger adverse real-world effects, the court would
manipulate the outcome, bearing the costs of manipulation and the forgone benefits of
adjudication (D+M).14 As the court expects to manipulate winning cases with relatively
high hi, it effectively reduces the costs from adjudicating these cases. As the price for
taking such high hi cases decreases, the court can adjudicate more cases in which the
petitioner seems to win (higher pi).15 However, the results are qualitatively similar to the
13
As aforementioned, under this setup revealing the merits (adjudication stage) does not add information
with regard to the potential real-world consequences of the case—the propensity of the case to trigger
perverse outcomes is revealed only at the third stage, after the court decides the merits.
14
Note that this strategy does not completely eliminate perverse real-world outcomes. Cases that seem to
be of a peaceful type are not manipulated, as hi is below the manipulation threshold (
DM
). Within this
K
group, some cases will turn out to be hostile reaction cases.
15
More precisely, cases with hi below the manipulation threshold will be selected for adjudication where
D
D-pihiK > 0, or when p 
(see equation (3)). For cases with high hi, above the manipulation
i hK
i
threshold, the court will take for adjudication cases in which (1-pi)*D+pi*(-M) = D-pi*(D+M)>0 (winning
cases will always be manipulated). Put differently, expecting manipulation, courts at the first stage will take
D
cases where p 
, a higher threshold for pi than before. Hence, with the introduction of the
i DM
capacity to manipulate, courts can select cases in which the petitioner is more likely to win.
19
previous analysis—the court engages in a selection process, and some cases that pass this
selection will end up with adverse real-world effects.
4. DISCUSSION AND IMPLICATIONS
Thus far the focus has been descriptive: the stylized model presented the selection
process courts employ where there is a threat of a hostile real-world reaction. The main
results, under plausible assumptions, are the following. First, the pool of adjudicated
cases is biased in favor of the party that argues against a legal change—typically, the
defendant, and often, the government. Another result is the tradeoff between more
discretion, stronger bias in favor of defendants, and fewer hostile reactions. Finally, the
model explains why some incidents of post-judgment hostility are inescapable.
This section elaborates on the implications of the results. The goal is not to take a
position regarding the effects of discretionary review on judicial decision-making; rather,
the purpose is to discuss in more detail both the negative and positive implications.
4.1. Skewed Pools of Adjudicated Cases
The cases courts select for adjudication are skewed. The presented model predicts that the
over-represented cases tend to be those in which defendants have stronger claims.16 This
implies that current defendants‘ win rates are higher than they should be.17 The reason is
16
In line with these predictions prior empirical evidence indicates that, due to the cert process, ―the Court‘s
docket disproportionately comprises cases wherein the Court will face little congressional constraint‖
(Harvey and Friedman 2009, pp. 575-76).
17
I abstract away from the possible influence the selection process has on litigants‘ incentives to bring
cases. To the extent litigants do take these considerations into account, and choose to bring fewer cases, the
20
that defendants, generally, have something that petitioners don‘t—the threat of adverse
real-world consequences. Where real-world implementation generates, from the court‘s
perspective, more harm than the benefit of adjudicating the case, the threat of perverse
outcomes induces courts to select more pro-defendant cases. The prospect of a hostile
post-judgment reaction, then, creates an inherent advantage for the defendants.
In particular, this discussion is relevant to the government, which maintains a
more credible threat of an adverse reaction; and to high-profile public law cases, in which
a change in the status quo is more likely to trigger popular opposition. This result is
consistent with the broader notion that, for various other reasons, government actors
enjoy higher success rates (Cohen and Spitzer 2000).
The severity of the problem depends, of course, on the relevant circumstances and
the assumptions courts have, at the selection phase, regarding the distribution of p and h
across the cases. But as long as courts engage in some selection process, the asymmetric
consequences would lead to skewed pools of adjudicated cases. Scholars have recently
turned attention to the far-reaching empirical consequences of several selection strategies
that the Supreme Court may take (Kastellec and Lax 2008). The selection process
depicted in this paper is another strategy with wide implications to the study of judicial
politics.
4.2. Avoiding Legally Meritorious Claims and Preserving the Status Quo
effect of prospective real-world consequences on courts‘ behavior and actual win rates is diluted. In that
case, however, the practiced law is still biased in favor of defendants.
21
While the literature has paid more attention to the cases the Court decides, the cases it
does not decide may be as important (Epstein, Segal, and Victor 2002, p. 432). Indeed,
the analysis shows that the mirror-image of the skewed pool of adjudicated cases is the
unrepresentative pool of dismissed cases. Where weaker cases (from the petitioners‘
perspective) are more often adjudicated, stronger cases are more often left undecided.
Courts prefer to avoid deciding strong cases because post-judgment implementation in
these cases is more likely to end in a hostile reaction. Some Brown-type cases are
decided, followed by an adverse post-judgment response; but relatively more Brown-type
cases are dismissed before adjudication.
The inclination to adjudicate pro-defendant cases and exclude pro-petitioner cases
makes courts reluctant to deviate from the status quo. Indeed, it seems that in several
sensitive areas justices do exclude legally plausible petitions due to the risk of adverse
real-world outcomes, hence maintaining the status quo. In the area of sovereign relations,
for example, ―the lengthening shadow of criticism‖ led the Court at one point in time to
abandon the entire field to State Department determinations (Dickinson 1956, pp. 473–
74). At another point in time, the Court refused to consider the constitutionality of antimiscegenation laws, leaving them intact (Naim v. Naim, 350 U.S. 985). These status-quo
preferences may well be apparent today. Sunstein indicated several contemporary issues
in which a ruling, however plausibly correct, is not politically feasible (2007, pp. 156–
57). Examples include recognizing same-sex marriage;18 holding that the Establishment
18
Indeed, in 2010 three Iowa judges who voted to legalize same-sex marriage were ousted (Sulzberger
2010). However, recent case law suggests that the popular consensus at this point may be changing (U.S. v.
Windsor, 133 S.Ct. 2675 [2013]).
22
Clause forbids references to God in currency and the Pledge of Allegiance; and striking
down measures designed to reduce the risk of terrorism, especially in sensitive times. The
logic of this paper explains why judges fail to take cases that might challenge the court,
thus preserving the status quo, at least in certain fields.
4.3. Tradeoffs between Discretion, Skewed Win Rates, and Perverse Outcomes
The preceding analysis highlights the tradeoffs embodied in discretionary review.
Implementing their selection process, courts trade off biased win rates against fewer
perverse outcomes. A more representative pool of adjudicated cases means more
incidents of hostile real-world reactions, other things being equal.19
Another tradeoff is institutional: between the latitude given to courts to winnow
out unwanted cases and the win-rates/perverse-outcomes balance. Where courts hold less
discretion to select cases for adjudication (dismissals are more costly), more
representative dockets and more perverse outcomes are the likely results. This logic bears
empirical predictions.20 The Supreme Court has been employing a more selective process
in recent decades (Daughety and Reinganum 2006, p. 7). Hence, to the extent the Court
indeed enjoys greater discretion, there should be a parallel trend: a decline in the number
of incidents of open defiance and public outrage (and more skewed dockets).
19
To the extent courts can manipulate the outcomes, they are able to save some potentially hostile real-
world effects through more manipulations.
20
Technically, more costly dismissals mean that the threshold D/K in the model is lower, as both D and K
decrease in a similar manner due to the costs of dismissals (in the model dismissal costs were normalized to
zero).
23
In addition to using overt discretion to choose cases, courts can abdicate
responsibility in more subtle ways, for example, through the use of jurisdiction doctrines.
The foregoing analysis demonstrates that the very same institutional tradeoff applies to
these more subtle judicial techniques. While these mechanisms, Bickel‘s ―passive
virtues,‖ have often been praised for shielding the judiciary from charged political
disputes, they also entail a price—distorted pools of adjudicated cases and a tendency to
stick to the status quo. On the other hand, in the absence of broad control of their dockets,
courts are forced to resolve more cases they do not want to, and hence suffer more
incidents of perverse outcomes.21 These tradeoffs are inherent in any procedural
mechanism that grants courts discretion to select cases.
4.4. Courts can Reduce—but not Eliminate—Perverse Outcomes
As a matter of fact, some adverse post-judgment reactions seem inevitable.
Notwithstanding their discretion to avoid taking tough cases, courts do sometimes face
hostile real-world repercussions (Bateup 2009, p. 554; Klarman 2001, p. 1182). Why
cannot courts completely avoid these destructive post-judgment outcomes? The foregoing
analysis explains this puzzling question. Some harmful real-world reactions are built into
the discretionary review system. In fact, even with complete information regarding the
prospective post-judgment consequences courts would not completely eliminate perverse
outcomes. This happens because courts cannot perfectly observe the merits of the case at
21
Similarly, courts that can manipulate the legal outcome would do so more frequently when they are
forced to hear more representative cases, some of which they preferred to dismiss.
24
the selection stage. Judges have, so to speak, to gamble; some cases they select will end
in unexpected legal results, leading to perverse real-world outcomes.22
Though courts cannot eliminate perverse outcomes, better information reduces
their frequency. This information perspective may explain several practices.
One example is the strategic use of amicus briefs. These briefs, it was argued,
signal the importance of the case, raising the odds of certiorari (Caldeira and Wright
1988). Sometimes, however, amicus briefs are filed in opposition to certiorari. These
briefs are puzzling, as they entail large investment and apparently yield a counterproductive result—suggesting that the case is important and the Court should take it
(Caldeira and Wright 1988). However, from the perspective of this paper, such briefs can
make perfect sense—they can serve an informative role. Briefs in opposition can
therefore advise the Court regarding the merits and odds of non-compliance, inducing it
to avoid decision. Similar briefs that inform the Court regarding real-world consequences
can be filed later, at the merits stage (Epstein and Knight 1999); but as this paper shows,
it is harder to sway courts when they reached the merits.23
22
As shown above, the capacity to manipulate the merits can reduce but not eliminate perverse outcomes,
as courts lack information regarding the propensity of the case to trigger hostile consequences. In case
courts do have both the capacity to manipulate and perfect information regarding the prospective hostility,
perverse real-world outcomes can be eliminated.
23
Generally, though, the efficacy of such informative signals can be questionable, for the signals have to be
reliable, and nothing prevents organizations from falsly informing the Court regarding harmful real-world
consequences. Similarly, it should be hard for defendants to reliably signal information regarding the
prospective real-world consequences, even when they hold the information (e.g., a defiant agency
indicating that it is not going to comply with the judgment if the case is taken and decided against it). As
25
Another illustration of the use of better information may be the comparison
between state and federal actors. Federal entities generally comply with the Supreme
Court, whereas state bureaucracies more commonly defy it (Spriggs 1997, p. 582). One
explanation for this different compliance behavior might be that federal agencies, much
more than state actors, are repeat players, who have an ―ongoing and close relationship‖
with the Court (Spriggs 1997, p. 582). This relationship allegedly makes federal agencies
―realize that defiance or evasion may harm their future success in court‖ (Spriggs 1997,
p. 582). The ―close relationship‖ theory can be questioned.
An alternative, more subtle story stems from the logic of this paper. As federal
units are repeat players, courts are more likely to know their prospective response to an
adverse ruling, i.e., whether they will resist the decision or not. In that case, the better
information courts have enables them to adjudicate more cases of compliant federal
agencies, even when these cases are relatively strong (from the petitioners‘ perspective);
and to dismiss more cases of resisting federal actors, even when these cases are relatively
weak. It is the better information courts have on agencies‘ type, not their desire to
maintain a ―close relationship‖ with the judiciary.
More generally, this example demonstrates that repeat players do not necessarily
come out ahead. In fact, repeat players, at least the compliant ones, do worse. The court
has more information on repeat players‘ likely real-world reaction, and thus it can better
select cases for adjudication.
compliant agencies are likely to mask themselves as defiant and emit the same signal, the signal has to be
more costly for compliant agencies (to deter them from masquerading as defiant).
26
5. LESSONS FOR INSTITUTIONAL DESIGN OF CONSTITUTIONAL COURTS
The logic presented thus far bears lessons for institutional design. In particular, the
approach taken is pertinent to supreme courts adjudicating public law cases, where the
potential harm of perverse outcomes is the highest. Avoiding controversial cases makes
sense from courts‘ cost-benefit analyses. One might think, though, that justices‘
incentives to adjudicate difficult cases are not perfectly aligned with the social value of
doing so.24 To the extent one believes it is socially beneficial to induce justices to hear
controversial cases, hostile real-world consequences notwithstanding, narrowing their
discretion to dismiss becomes valuable. And vice versa: to the extent judicial review is
not socially valuable, particularly in controversial areas, may want to provide courts with
more discretion to avoid deciding. In this very sense, and contrary to common intuitions,
broad discretion limits supreme courts; narrow discretion, in contrast, urges them to take
unpopular decisions.
As will be demonstrated below, legal systems can use two main mechanisms to
narrow supreme courts‘ discretion to avoid controversial cases. One obvious tool is
limiting the power of supreme courts to select cases for adjudication. Another, more
subtle mechanism is decentralizing judicial review. These two approaches are substitutes
as they both compel supreme courts to decide cases they do not want to.
5.1. Narrow Discretionary Review
24
Taking controversial cases, of course, may be socially harmful—hostile real-world reactions, which
erode the legitimacy of the judiciary, for example, may be undesirable not just for the judges but for the
society as a whole.
27
When it is harder for courts to select cases for adjudication, the expected results are, in
principle, more representative pools of adjudicated cases as well as a higher rate of
perverse real-world outcomes. Narrower discretionary jurisdiction makes courts more
willing to rule against the government in controversial cases, the risk of perverse
outcomes notwithstanding.
This simple result has received scant attention. While some scholars point out that
discretionary review discourages supreme courts from taking tough cases (Scheppele
2006, pp. 1769–70), a more consensual view seems to stress that discretionary review
empowers supreme courts as it enables them to independently construct their agenda (for
example, Friedman 2005, p. 294; Cordray and Cordray 2004, pp. 389–97). A recent
reform proposal, signed by numerous eminent law professors, is illustrative. The proposal
asserts that the current broad discretion the Court has over its docket raises public
concerns regarding the ―excessive independence of the judiciary‖ (Amar et al. 2009, p.
10). Contrary to these expectations, a recent paper that empirically examines judicial
review since 1789 concludes that ―[i]f anything, laws that come before the Court through
its discretionary docket are more likely to be upheld‖ (Clark and Whittington 2011, p.
25). Though they might be counter-intuitive, these findings are consistent with the logic
of this paper—wide discretion over their dockets makes supreme courts less likely to
issue bold decisions. Broad discretion, then, does not necessarily lead to independence of
the judiciary; rather, it results in subordination to other branches, at least in the very
controversial cases which might lead to hostile real-world reactions.
Unfettered discretionary review is by no means a universal standard. As will be
discussed in further detail below, European legal systems typically embrace the idea of a
28
constitutional court with narrow discretion to dismiss unwanted cases. ―If a constitutional
question falls within the jurisdiction of the [European-style constitutional] court, the court
must answer it‖ (Scheppele 2006, pp. 1769–70). Likewise, there are other mechanisms to
confine the discretion supreme courts have. A recent proposal recognizes the need to
reduce the Supreme Court‘s workload through discretionary review, but assigns the role
of selecting cases to an independent body (Amar et al. 2009). Other options might be a
stricter obligation to provide reasoning for decisions to deny review, and eliminating
opportunities to dismiss the case after it was selected for adjudication. These and other
design mechanisms ensure that it will be harder for supreme/constitutional courts to
offhandedly avoid tough cases.25
5.2. Diffusion of Responsibility for Judicial Review
The desire to avoid hard cases is relevant to another institutional choice: which court/s
should engage in judicial review? Roughly speaking, there are two approaches. First, any
court in the system, including lower courts, can hold a statute unconstitutional. When
taken by lower courts, such decisions are subject to appellate review. The federal system
illustrates this approach, as every federal court can review statutes for their
unconstitutionality, and these decisions are subject to appeal. I refer to this model as
diffused/decentralized judicial review. The second approach concentrates judicial review
in one single court. Typically, it is a specialized ―constitutional court,‖ whose only (or
25
A related point is the choice between abstract and concrete, as-applied review. Concrete review allows
more discretion since judges can limit their decision to the specific factual setting (Scheppele 2006, p.
1770). Abstract review, in contrast, means less freedom to avoid unwanted rulings.
29
main) task is constitutional review of statutes. The centralized model is prevalent in
European legal systems (Ferreres Comella 2004). While centralization allows supreme
courts to control their dockets, decentralized review, as will be demonstrated below,
forces them to resolve cases they do not want to. Therefore, diffusion of responsibility for
judicial review is an alternative mechanism to constrain supreme courts‘ discretion.
The costs of perverse outcomes, such as loss of legitimacy, are borne by the
judiciary as a whole; however, they particularly harm its highest ranks (Scheppele 2006;
Bateup 2009, p. 552). It is the ultimate institution in charge of interpreting the law—the
Supreme Court—that typically incurs the largest costs from a political backlash against
the judiciary (Goldsmith and Levinson 2009, pp. 1833–34). In systems of diffused
judicial review, while the supreme court is the main subject of these costs, it is other,
lower courts, that have to take the controversial decision first. Although the responsibility
for problematic rulings is shared, to some extent, by lower courts, they care less about
deviating from the status quo. Therefore, lower judges in diffused systems are imperfect
agents. While they have the capacity to bind the judiciary as a whole, they do not, to
borrow Owen Fiss‘s description, ―accept full responsibility for the decisions or actions of
the organization‖ (1983, p. 1456).
This phenomenon makes lower courts less constrained. Take, for instance, the
politically-sensitive Pledge of Allegiance. While the Supreme Court refused to decide
whether the words ―under God‖ are an unconstitutional endorsement of religion,
allegedly for fear of ―a great deal of public outrage‖ (Sunstein 2007, p. 157), it is a lower
appellate court, the Ninth Circuit, which at one point in time boldly held that this practice
violates the Establishment Clause (Elk Grove v. Newdow case (542 U.S. 1 [2004])). It
30
may well be that consequential, real-world considerations influenced the Supreme Court
to a larger extent than the Ninth Circuit, and that this factor explains the different rulings.
Diffusion of responsibility for judicial review, then, enables lower courts to rule on
controversial cases that the Supreme Court is not likely to take. The justices‘ prudence, so
to speak, follows their bench.
The literature has given some attention to the role lower courts play in changing
current policies. In United States v. Lopez the Supreme Court affirmed the Fifth Circuit
decision, declaring the federal Gun-Free School Zones Act of 1990 unconstitutional, and,
for the first time since the New Deal, setting limits to Congress‘s power under the
Commerce Clause (514 U.S. 549 [1995]). Discussing Lopez, Jack Balkin and Sanford
Levinson assert that ―[i]t is . . . unthinkable that the Supreme Court would ever have
reviewed the federal statute at issue in Lopez if the Fifth Circuit had not struck it down in
the first place‖ (2001, p. 1074). The explanation for this phenomenon, according to
Balkin and Levinson, stems from judges‘ extreme ideology: ―It is usually easier to
appoint strongly ideological lower court judges than Justices because there is less
scrutiny by the Senate‖ (2001, p. 1074). The logic that this paper develops provides a
different explanation—decentralizing judicial review liberates, to some extent, lower
courts from the hostile real-world repercussions to which the Supreme Court is subject.
These two explanations for lower courts‘ courage to make controversial decisions
are conceptually distinct. One can think of an appointment process that produces more
ideological variance among lower courts without decentralizing judicial review (and vice
versa). These two stories also entail different predictions. Greater ideological variance
among lower court judges should produce more revolutionary rulings on both sides—for
31
and against the government, depending on the judges‘ ideology. Diffusion of
responsibility, in contrast, has nothing to do with the judges‘ ideology. Instead, it enables
the judiciary to take more controversial cases—typically, the cases that might eventuate
in a bold change in the status quo and adverse real-world repercussions. Diffusion of
responsibility, then, should make the judiciary more inclined to hear controversial cases
and eventually rule against the government.
The Supreme Court can reverse lower court judgments that threaten it. However,
the control higher courts exert over lower courts is far from being perfect (Fiss 1983, p.
1452; Friedman 2005, pp. 302–05).26 Furthermore, a lower court ruling against official
policy puts the Court in a different reality. Denying review leaves the revolutionary
decision intact. The new decision, in that case, exposes the Supreme Court to its potential
real-world ramifications, especially when it has nationwide application. Even if the new
decision is limited in scope, and the justices manage to avoid reviewing the issue once,
eventually they may well be driven, in virtue of the institutional role of the Court, to
resolve an inter-circuit split although they ―realize [that granting cert] could . . . force
them to disregard their . . . views‖ (Epstein, Segal, and Victor 2002, p. 399 n. 17).
Therefore, diffusion of responsibility between the Supreme Court and lower courts
creates a different dynamic that narrows the Court‘s discretion to dismiss cases—it
reduces the threshold for the Court to review controversial cases and eventually make
decisions that deviate from the status quo.
26
To the extent lower court judges are subject to effective sanctions—perhaps when facing re-election—
diffusion of responsibility is a weaker tool to liberate judicial action.
32
In addition to this effect of diffused responsibility, the institutional choice
between concentrated and diffused judicial review may bear on the likelihood and costs
of perverse outcomes K (rather than their allocation between lower and higher courts).
The argument is based on the visibility of one single constitutional court vis-à-vis a
diffused system of judicial review (Stone Sweet 2007). In concentrated systems, ―because
there is only one court that can hold that a statute is invalid, the potential attention of
political parties and of public opinion will focus on that court‖ (Ferreres Comella 2004, p.
1726). The visibility argument particularly pertains to constitutional court presidents, ―the
public personification of the guardian of the constitution‖ (Scheppele 2006, p. 1772).
This visibility makes perverse real-world outcomes more of a problem in centralized
systems. No wonder, then, that there are examples of constitutional court presidents
whose visibility led to gloomy personal fates (Scheppele 2006). In contrast, in diffused
systems of judicial review, as in the U.S. where a ―statute is attacked gradually,‖ bold
moves by the judiciary are generally less visible and are more likely to face milder
criticism (Ferreres Comella 2004, p. 1726).
Diffused responsibility frees action. Decentralized, less visible systems of judicial
review suffer lower costs of perverse real-world outcomes; and the unique dynamic in
diffused, hierarchical systems limits the highest court‘s latitude. This narrower discretion
leads to more representative dockets, and more incidents of hostile post-judgment
reactions. While cross-country comparison is a difficult task, empirical evidence suggests
that in the context of state supreme courts ―the presence of an intermediate appellate
court significantly increases the probability that the state supreme court will decide
constitutional challenges‖ (Langer 2002, p. 94).
33
5.3. Lessons for Institutional Design
The foregoing discussion demonstrates that decentralization and narrow discretion to
select cases for adjudication serve a similar role. Both mechanisms induce justices to hear
more controversial cases, even when the result might be confrontation between the
judiciary and other branches or public outrage.
Systems of judicial review often possess one of these two mechanisms: narrow
discretionary jurisdiction or diffused responsibility. While the American model features
diffused responsibility (but broad discretion to select cases), European-style judicial
review allows narrow latitude to avoid hearing cases (but through a single constitutional
court). Though the boundaries between the two models are not always sharp,27 their
prevalence seems not to be a happenstance but an institutional choice regarding
discretionary review. Of course, there are other reasons for the proliferation of these two
models. The traditional argument is based on specialization, i.e., the desire to separate
ordinary and constitutional jurisdiction; when constitutional courts hear only
constitutional questions, there is a weaker need to provide them with discretion to dismiss
cases (Michelman 2011). Historically, centralized constitutional courts were promoted on
the grounds that they are a more easily controlled form of judicial review—a compromise
between American judicial review and no judicial review (Stone Sweet 2000, pp. 34–38,
27
Constitutional courts, which have narrow latitude to avoid hearing cases, do retain some limited control
of their dockets. In particular, constitutional courts determine whether a certain issue presents a
―constitutional question‖ that should be adjudicated (Michelman, 2011; Scheppele 2006, pp. 1769-70).
Similarly, even in centralized systems, lower courts exercise some undisciplined autonomy (Stone Sweet
2007, p. 91).
34
40). However, this paper demonstrates that constitutional courts need not be more
restrained, contrary to common expectations (Lijphart 1999, p. 228). After all, and unlike
the American Supreme Court, European constitutional courts have narrow discretion to
avoid controversial cases.
Moreover, when the functional similarity between discretionary jurisdiction and
centralization is taken into account, new avenues for institutional design are opened up.
One can conceive, for example, of hybrid models. One such hybrid—a single
constitutional court that enjoys broad discretion to select cases for adjudication—can
make constitutional courts even more controllable than their visionaries expected. This
constitutional court would hardly adjudicate controversial cases that are likely to confront
it with other branches. Rather, in the absence of lower courts adjudication and mandatory
review, unwanted cases are likely to be dismissed.
This
paper,
then,
bears
several
predictions
as
to
the
practice
of
supreme/constitutional courts. First, other things being equal, decentralization of judicial
review should make the judiciary more inclined to confront the government, but more
incidents of hostile real-world reactions should be expected. Circuit courts, as noted
above, play a crucial role in facilitating legal revolutions; and some empirical evidence in
the context of state supreme courts supports this logic (Langer 2002).
Second, discretion to select cases for adjudication is akin to centralization—in
principle, the more discretionary jurisdiction supreme courts have, the less likely they are
to confront the government in controversial cases and the more biased their dockets are.
Indeed, as noted before, there is some evidence that discretion is correlated with a weaker
inclination to invalidate statutes, and that the Court‘s selection process results in biased
35
pools of adjudicated cases; likewise, there are numerous anecdotal examples of
controversial cases that the Court chose to dismiss. Discretion is tricky to measure, as
courts manifest it in various ways. Generally speaking, as courts have limited resources,
larger caseloads stress the need to avoid cases and push courts to exercise more discretion
to select cases. In this sense, aggrandizing supreme courts‘ jurisdiction might be
attractive for the justices (Stone Sweet 2000, pp. 56–57), but it entails more discretion to
select cases and hence should weaken the judiciary‘s capacity to take difficult cases,
contrary to common intuitions. An illustrative example may be drawn from Italy. While
the Italian Constitutional Court has strived for a broader jurisdiction—successfully
encouraging lower courts to refer to it the maximum number of constitutional cases
(Stone Sweet 2000, p. 65)—it simultaneously exercises relatively broad discretion to
avoid cases (Ferreres Comella 2004, pp. 1713–14). Indeed, judicial review in Italy
appears to be relatively weak (Nardini 1999; Stone Sweet 2000, p. 65). These lessons are
relevant to the understanding of current legal systems and the design of new ones.
6. CONCLUSION
Not all decisions result in rosy real-world consequences. Sometimes legally correct
rulings lead to adverse post-judgment official or public reactions. Typical examples are
Brown-type, high-profile landmark cases. Where the real-world outcome makes the
decision counter-productive, from the court‘s perspective, it is better off not hearing the
case. The discretion to select cases for adjudication—which Alexander Bickel famously
praised as ―passive virtues‖—enables courts to achieve this goal. Discretion, in this
sense, constrains courts, contrary to common perspectives. The more control over their
36
dockets courts have, the less inclined they are to take the tough cases, and the more
skewed the pools of cases they actually adjudicate. As the paper demonstrates,
institutional designers can think of many ways to narrow supreme courts‘ discretion to
avoid controversial cases; one subtle mechanism is decentralizing judicial review.
The analysis opens several avenues for research. First, the paper provides testable
predictions regarding the tradeoffs between discretion, representative dockets, and
perverse outcomes, as well as institutional design and judicial activism. Second, the
literature tends to assume that courts have perfect information regarding the real-world
repercussions of their decisions. As the paper demonstrates, dismissing this assumption
leads to interesting questions concerning courts‘ decision-making, the selection process
they implement, and the potential response of litigants. Third, similar analysis can be
extended to other contexts in which review is discretionary and real-world consequences
might be counter-productive.28 These are all topics for further inquiry.
28
One such context might be criminal enforcement, where agencies have wide discretion to ―take‖ cases,
some of which end up with inefficient sanctions.
37
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