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Constraining Certiorari Using Administrative Law Principles

U.S. Supreme Court—thanks to various statutes passed by Congress beginning
in 1891 and culminating in 1988—currently enjoys nearly unfettered
discretion to set its docket using the writ of certiorari. Over
the past few decades, concerns have mounted that the Court has been
taking the wrong mix of cases, hearing too few cases, and relying too
heavily on law clerks in the certiorari process. Scholars, in
turn, have proposed fairly sweeping reforms, such as the creation of
a certiorari division to handle certiorari petitions. This Article
argues that before the Court’s discretion to set its own agenda is
taken away, another area of the law—one that already has thought long
and hard about how to constrain delegated discretion—should be consulted:
administrative law. Although certiorari and administrative law
certainly differ, both involve congressional delegations of discretion
to a less accountable body and therefore both raise concerns of accountability,
transparency, and reasoned decisionmaking. Accordingly, in considering
certiorari reform, it makes sense to borrow from some of administrative
law’s well-developed lessons about how delegated discretion can be
controlled. Specifically, after consulting the
nondelegation doctrine, reason-giving requirements, public participation
mechanisms, and oversight principles found in administrative law, this
Article concludes that vote-disclosure requirements and increased public
participation stand as promising ways of checking the Court’s currently
unconstrained discretion.