For Justices Harlan and Brennan, it was a matter of “feel.” For Justice Murphy, a matter of “grace.” For Chief Justice Rehnquist, it was a “rather subjective decision.” And for Justice Douglas, it was “highly personal.” 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.