Does the Supreme Court’s Cherry-Picking Inject Politics Into Judging?

We say that the Supreme Court decides cases, but that is not correct. It picks isolated questions to answer, often choosing among ones proposed by the parties or writing ones of its own.

That practice adds a disturbing element of politics to the judicial process, said Benjamin B. Johnson, a law professor at the University of Florida and the author of three recent papers on the subject.

“They are no longer doing what a court does, which is deciding cases,” he said. “They’re now doing what a legislature does, which is answering discrete policy questions.”

Consider a few examples.

When the court agreed to hear one of this term’s most important cases, it rejected a modest question proposed by the plaintiffs and said it would only consider one that asked it to overrule an important precedent, Chevron v. Natural Resources Defense Council.

The same thing happened in the Dobbs case, which eliminated the constitutional right to abortion. When the court granted review, it picked only the broadest of the three proposed questions, one that led it to overrule Roe v. Wade.

“Even though the court had alternative pathways to resolve the case without inviting a firestorm of controversy,” Professor Johnson wrote in the Alabama Law Review, “the justices intentionally eliminated those alternatives from their review.”

In the recent case of a Christian web designer who challenged a Colorado law barring discrimination based on sexual orientation, the court accepted only part of one of her two proposed questions. The court said it would not consider whether the law was at odds with her right to free exercise of her religion and would treat the case solely a free-speech challenge.

And when the court agreed to hear two big cases on the First Amendment and social media last month, it did not adopt the questions proposed by any of the parties. It looked instead to a friend-of-the-court brief filed by the Biden administration, choosing two of its four questions.

This sort of cherry-picking and revision, Professor Johnson said, is on the rise. “What was once a relatively rare occurrence now makes up between a tenth and a quarter of the docket,” he said.

The practice is problematic, he added. “This arrangement may serve the court’s institutional interests,” he wrote in the Columbia Law Review, “but it also pulls the court into politics.”

Data compiled by Professor Johnson from the two decades ending in 2020 seems to back that up. When the court added or subtracted questions, he found, the case was more likely to attract friend-of-the-court briefs and to result in 5-to-4 splits.

A century ago, in 1925, Chief Justice William Howard Taft persuaded Congress to cut back on the kinds of cases the Supreme Court had to hear, allowing the court to choose for itself which ones it would decide. That itself was an extraordinary move. Giving the justices almost total discretion over their docket helped to transform and empower it.

But the 1925 law did not authorize the justices to take the further step of picking the questions they would answer. “This is clear both from the statutory language and the justices’ own testimony in favor of the bill,” Professor Johnson wrote. Indeed, Chief Justice Taft had assured lawmakers that in federal cases the “power of review extends to the whole case and every question presented in it.”

Still, in later decisions and then in the court’s own rules, the justices said they would consider only discrete questions.

That was so, Professor Johnson wrote, “even though Congress mandated — and the justices promised — review of the entire case.”

It is one thing to allow the Supreme Court to decide which cases to hear and another to let it choose to answer the questions proposed in the petition seeking review. But it is a third thing for the justices to choose among those questions. And it is yet another thing for them to write their own questions.

But the court has drafted its own questions in any number of landmark cases, including ones on the right to counsel, the 2000 presidential election, campaign finance, same-sex marriage, class actions, recess appointments and immigration.

At the same time, the Supreme Court has had little patience with lower courts that try something similar.

Three years ago, for instance, the justices chastised a federal appeals court for revising the questions before it, saying that it ran afoul of “the principle of party presentation.” Justice Ruth Bader Ginsburg, quoting an earlier decision, explained that “we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”