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Gaming Certiorari

Just how “supreme” is the Supreme Court? By most accounts, the Supreme Court sits atop of the nation’s judicial hierarchy and—at least among judges—has the last word on what the law means. Yet this conventional wisdom overlooks something important: the Supreme Court’s ability to “say what the law is” is limited both by the cases presented to it and the manner of their presentation. This means that the Supreme Court’s supremacy in a sense depends on how lower courts tee cases up for the Justices, which in turns means that lower court judges—acting strategically—can influence which cases the Supreme Court decides. By understanding how the certiorari process works, lower court judges can reverse engineer their decisions to make certiorari more or less attractive for the Justices. It is more difficult, for example, for the Justices to review decisions with cursory analysis, fact-bound rationales, or alternative holdings, and these or similar techniques are often available to a lower court seeking to avoid the Supreme Court’s attention.