First Circuit Dissenters Discuss Supreme Court’s Case-Selection Criteria

For Justices Harlan and Brennan, it was a matter of “feel.”[1] For Justice Murphy, a matter of “grace.”[2] For Chief Justice Rehnquist, it was a “rather subjective decision.”[3] And for Justice Douglas, it was “highly personal.”[4] But for many, the characteristics that make a case “certworthy”—that is, worthy of the Supreme Court’s discretionary review—remain shrouded in mystery.

While scholars like H. W. Perry, author of “Deciding to Decide: Agenda Setting in the United States Supreme Court,” have identified a variety of factors that influence a Justice's vote to hear a particular case, courts rarely discuss the topic in any meaningful way. On Monday, Judges Torruella and Thompson of the First Circuit broke the code of silence in a dissenting opinion by discussing at length a variety of factors that they believe create “a reasonable probability that four Justices will vote to grant certiorari.” United States v. Pleau, Nos. 11-1775,m11-1782 (1st Cir. May 21, 2012) (en banc) (Torruella & Thompson, JJ. dissenting).

If you are in the least bit interested in learning about the factors that the Supreme Court typically considers when setting its agenda I would highly recommend reading this dissent. Tomorrow I’ll expand on some of the factors of "certworthiness" identified in Pleau's dissent.

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[1] John M. Harlan, Manning the Dikes, 13 Rec. Ass’n B. N.Y. City 541, 549 (1958);

[2] Wade v. Mayo, 334 US 672, 680 (1948) (Murphy, J.); William J. Brennan, Jr., The National Court of Appeals: Another Dissent, 40 U. Chi. L. Rev. 473, 478 (1973).

[3] William H. Rehnquist, The Supreme Court, How it Was, How It Is 265 (1987).

[4] William O. Douglas, The Court Years 1939–1975, at 175–66 (1980).