The judge-umpire analogy has become “accepted as a kind of shorthand for judicial ‘best practices’” in describing the role of a Supreme Court Justice. However, the analogy suffers from three fundamental flaws. First, courts historically aimed the judge-umpire analogy at trial judges. Second, courts intended the judge-umpire analogy as an illustrative foil to be rejected because of the umpire’s passivity. Third, the analogy inaccurately describes the contemporary role of the modern Supreme Court Justice. Nevertheless, no workable substitute for the judge-umpire analogy has been advanced. This Essay proposes that the appropriate analog for a Justice of the Supreme Court is not an umpire, but the Commissioner of Major League Baseball.

The declining number of cases on the Supreme Court’s plenary docket may or may not be a problem. After all, there are many good reasons that such a decline could be happening, including the obvious possibility that the Court was previously hearing too many cases that did not warrant plenary review and is now doing a better, not worse, job of picking cases. But while having fewer cases is not necessarily problematic, what is worrisome is the very real possibility that the Court’s plenary docket is increasingly captured by an elite group of expert Supreme Court advocates, dominated by those in the private bar. The same way that powerful economic interests can capture an agency or any other entity that purports to exercise authority over those interests, so too may the Supreme Court’s docket be “captured” by the more powerful economic interests that know best how to influence the decisionmaking of the Justices at the jurisdictional stage. It is, accordingly, not the number of cases on the plenary docket but rather their content that is the real problem.

I. The Rising Influence of the Supreme Court Bar at the Jurisdictional Stage

The statistics are striking. While the number of merits cases has roughly declined by one half during the past three decades, the influence of the expert Supreme Court bar over the plenary docket during this same time period has increased approximately tenfold; expert practitioners now represent the successful petitioner at the jurisdictional stage in more than fifty percent of the cases. What is the basis of this measurement? I examined the petitions granted plenary review in several Supreme Court Terms, ranging back to October Term 1980 and extending to the most recently completed October Term 2008. I deliberately eliminated from consideration cases in which the Solicitor General was the petitioner or one of the petitioners because her influence is well established. And, I chose a fairly tough measure of what it means to be an “expert Supreme Court advocate”: an attorney either has to have presented at least five oral arguments before the Court or be affiliated with a practice whose current members have argued at least ten cases. Based on this measure, expert Supreme Court advocates were responsible for 5.8% (6 of 102 cases) of the petitions granted plenary review during October Term 1980. By October Term 2000, that same percentage had increased to 25% (seventeen of sixty-eight cases) and has steadily increased since—36% in October Term 2005 and 44% in October Term 2006—to boast more than 50% of the Court’s docket during both the most recently completed October Terms 2007 (53.8%) and 2008 (55.5%). I do not doubt that there is some inexactitude at the margins in counting cases and oral arguments and comparing Supreme Court Terms, but these trends are beyond marginal. They reflect a shift of an order of magnitude.

Why should we worry? Good advocacy is not a bad thing, of course, and it should not be especially surprising to discover that those who are more experienced advocates before the Court are especially successful in persuading the Court to grant their certiorari petitions. What is worrisome is the potential for an undesirable skewing in the content of the Court’s docket. The public should expect that the Court will devote its limited resources to address the legal issues that are truly the most important for the nation rather than those legal issues important to those who can secure representation of their interests by the Supreme Court bar.

II. The Environmental Law Cases of October Term 2008

It is not numbers alone that strongly suggest that the private Supreme Court bar is increasingly capturing the Court’s docket. A look at the cases themselves reinforces that suggestion. As described further below, the Court regularly grants cases at the urging of leading members of the private sector Supreme Court bar that are marginally certiorari worthy at best, at a time when the rates of granting certiorari are otherwise rapidly declining. No one may be more skilled in this respect right now than Sidley Austin’s Supreme Court practice, as underscored by the extraordinary number of cases arising under the Federal Employer Liability Act in which the firm has obtained High Court review on behalf of railroad clients.

Especially illustrative are the environmental cases from October Term 2008. For the first time, a series of industry clients last Term turned repeatedly to the expert Supreme Court bar for assistance in a host of cases arising under federal pollution control laws. The result was palpable and formed the basis of the best Term that industry has ever enjoyed before the Court in environmental cases.

The Court granted review in four cases that, absent the involvement of expert practitioners, would not have seemed to have had a remote chance of review. Two were Clean Water Act cases (Entergy Corp. v. Riverkeeper, Inc. and Coeur Alaska, Inc. v. Southeast Alaska Conservation Council) in which industry parties were merely intervenors in the lower courts and the federal agency that had lost the case declined to petition on its own and opposed Supreme Court review. Such federal opposition is almost always the death knell of a petition. If the Solicitor General is advising the Court that the federal agency that lost below is not seeking review that tends to end the matter. In one of those cases (Entergy), not only was there no circuit court conflict, but the lower court ruling was the first court of appeals ever to construe statutory language that has been on the books for more than thirty-six years. The third and fourth cases, Burlington Northern & San Francisco Railroad v. United States and Shell Oil v. United States, both arose under the federal Superfund law and raised legal issues of diminishing practical significance the Court declined to hear for decades. Not only is Superfund a retrospective liability law that has naturally dissipated in its application over time, but Congress has declined since 1995 to reauthorize the federal tax that funds the Act, so resources for the law’s administration have been running out ever since.

In all four cases, a high-profile member of the private Supreme Court bar served as lead counsel for industry petitioners: Maureen Mahoney in Entergy and Burlington Northern, Ted Olson in Coeur Alaska, Inc., and Kathleen Sullivan in Shell Oil. The bar’s coup de grâce last Term, however, was the Court’s denial of the Solicitor General’s petition in yet another Clean Water Act case, McWane, Inc. v. United States. McWane presented all the traditional criteria of a case warranting review—an express, deep, and wide conflict in the circuits regarding a legal issue of national importance; yet, the Court denied review after Ted Olson’s partner at Gibson Dunn, Miguel Estrada, filed an especially skillful brief in opposition to the government’s petition. There is hardly anything in Supreme Court advocacy as difficult as obtaining plenary review, but defeating a Solicitor General’s petition runs a close second. The Court grants the Solicitor General’s petitions for writ of certiorari about seventy percent of the time compared to between three and four percent for others.

III. The Susceptibility to Capture of the Court’s Jurisdictional Decisionmaking

Some might respond that even if the Court’s plenary docket has been captured, this is not the result of a hostile takeover. Any such development, it could be contended, results from the predilections of business-friendly members of the Court rather than the heightened skills of the advocates. Such an assessment, however, would both overestimate the role Justices play at the jurisdictional stage and underestimate the influence of the advocates. To be sure, the Justices—and not the advocates—are the ones with the votes necessary to grant certiorari. But the Justices are far more dependent on the skills of the advocates than is routinely appreciated.

Even with the introduction of the “cert” pool, neither the Justices nor their clerks can in fact spend significant time evaluating the certiorari worthiness of the literally thousands of petitions that must be reviewed. Once one subtracts the significant time necessary to decide increasingly complex merits cases and the other activities of a Justice these days, the clerks can spend on average only minutes for each cert pool memo, or at most a few hours for a handful. The Justices have, in theory, at most only a few minutes to review a petition and may in fact never read the petitions themselves. The Justices instead delegate the task to their law clerks—inexperienced recent law school graduates who lack both the requisite background and time necessary to consider the competing legal arguments on the merits, and to evaluate in a truly informed and independent manner the petitioner’s claims of circuit conflict and practical importance.

The upshot is a huge tactical advantage for those attorneys who know best how to pitch their cases to the law clerks. The expert attorneys know the trends in the Court’s recent precedent and the predilections of each individual Justice as evidenced in recent oral argument transcripts, speeches, and writings. Having once served as Supreme Court clerks themselves, the experts are also well versed in the generic limitations, susceptibilities, and tendencies of the clerks.

Their expertise extends to the securing of multiple amicus briefs at the jurisdictional stage in support of their request for the Court’s plenary review. They appreciate how amicus support substantiates their assertions regarding the importance of the legal issues proffered for review. And they have the professional connections with other members of the Supreme Court bar and the economic clout to generate the necessary amicus submissions. If news article and op-ed columns contemporaneous to the Court’s jurisdictional determination might be helpful, they can and will obtain them.

The expert advocates also invariably enjoy an advantage by dint of their sheer celebrity, at least within the confines of One First Street, N.E. The clerks know of the outstanding reputation of these expert advocates for working on important Supreme Court cases. Many of the clerks hope to and do in fact work for these experts’ law firms immediately or soon after their clerkships. And, for no reason more than the appearance of the name of the advocate on the cover of the brief, their petitions will receive more attention and respect. This is not an incidental advantage. In the barrage of petitions under review, visibility alone can make all the difference at the jurisdictional stage, especially when buttressed by multiple amicus briefs supporting plenary review.

The effect is twofold. Not only are the expert Supreme Court counsel able to make their petitions seem more compelling, but they are simultaneously able to make petitions filed by others less expert seem relatively weaker by comparison. The experts have, in practical effect, raised the bar for Supreme Court review through their outstanding presentations and significant amicus support.

IV. Reforming the Court’s Decisionmaking Process at the Jurisdictional Stage

The question is what, if anything, to do about the disproportionate influence the high Court bar increasingly has on the Court’s plenary docket. A full answer to that question, however, lies far beyond the purpose of this Essay, which seeks to initiate, and not end, the conversation. Nonetheless, I offer a few preliminary thoughts. First, part of the answer could, of course, be to improve the Supreme Court advocacy available to a wide range of interests beyond those who can afford to pay its market value. Mitigation already occurs to an extent as reflected in the private bar’s willingness to offer pro bono services, the development of expert solicitors general in many states, and the recent emergence of Supreme Court clinics in several of the nation’s leading law schools.

But, such mitigating efforts fall far short of filling the gap between those who have access to the resources of the expert Supreme Court bar and those who do not. Much of the private law firm pro bono effort occurs at the merits stage rather than at the certiorari stage and there are many subject matters (e.g., environmental, employment discrimination) that the private bar, because of conflicts with paying clients, will not take up, including when they oversee the law school Supreme Court clinics. It is undeniably a positive development to have the states represented more effectively than in the past, but they too are limited in their perspective and, for instance, may deepen rather than reduce the advocacy gap existing in criminal cases. Finally, the Supreme Court clinics offer some promise, but law students even at schools like Harvard, Northwestern, Stanford, Texas, Virginia, and Yale are still just that: students.

The disproportionate influence that the expert Supreme Court bar exerts on the content of the Court’s plenary docket is the problem, not solved by which cases the bar takes—business or public interest—but by the Court itself asserting more control. For this reason, I expect the fuller solution to the docket capture problem will be found, by analogy, to the kinds of structural reforms that have been made in administrative agencies to reduce the risk of agency capture.

As applied to the Court, such reforms would require changes in the Court’s internal decisionmaking process at the cert stage. The place to start is questioning the existing cert pool as the primary basis for evaluating which cases warrant plenary review. As currently structured, the law clerks lack the time, experience, and resources at the jurisdictional stage to evaluate in a meaningful way the claims made by expert counsel or to make up for the deficits of below-par counsel.

At the Yale Law School Supreme Court Advocacy Clinic Conference on the Court’s case selection process, speakers and audience participants suggested several preliminary ideas. One modest recommendation would be to replace the existing single cert pool with two competing cert pools, thereby increasing the number of clerks who provide a petition with a close review. Another would be the introduction of a two-step process to jurisdictional review in which the clerks would first identify potentially cert-worthy cases and then next examine that smaller subset of petitions more closely prior to recommending in favor of certiorari.

A more ambitious reform would be for the Justices to be more willing at the jurisdictional stage to seek input from those outside the Court who are knowledgeable about the issues raised by a pending petition. The Court currently seeks such input several times a year on pending petitions, but exclusively from the Solicitor General by way of formal orders inviting the Solicitor General to express the views of the United States on a pending petition. The Court could make similar requests from other knowledgeable organizations as a method of ensuring the wisdom of the Court’s jurisdictional determinations.

An even more dramatic structural reform would be the addition to the Court of an office of seasoned, career lawyers akin in skills to assistants to the Solicitor General; the attorneys in such an office would assist the Court at the jurisdictional stage in assessing the worthiness of cases for judicial review, by both questioning the exaggerated claims of some advocates and making up for the deficiencies of other advocates. Whatever the best approach, it is increasingly likely that the current potential for capture of the Court’s docket is a significant problem that warrants the Court’s attention.

Richard J. Lazarus is the Professor of Law, Georgetown University Law Center & Faculty Director, Georgetown University Supreme Court Institute. This paper was based on a talk delivered at the Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online Conference on Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process, held in Washington, D.C., on September 18, 2009.

Preferred Citation: Richard J. Lazarus, Docket Capture at the High Court, 119 Yale L.J. Online 89 (2009), available at http://yalelawjournal.org/2010/01/24/lazarus.html.

As the output of the Supreme Court shrinks, from about 150 cases per Term decided with full opinions in the mid-1980s to about seventy now, concern has grown over whether the Court is deciding too few cases and consequently leaving too many important cases and issues undecided. The extent to which the concern is justified, however, depends in part on what is meant by “important,” and in part on whether it is important that the Supreme Court decide important cases. If we distinguish publicly important from legally important cases, we see that the Court rarely takes on the former, nor has it done so to any appreciable extent since the 1930s. But as the Court’s docket shrinks, it is also deciding fewer legally important cases, a recent and unfortunate change from past practice.

Moreover, and again in a shift from past practice, the Court is even less willing than in the past to provide legal guidance in the legally important cases it does take. This regrettable consequence is caused largely by an information deficit, for little in the Court’s current procedures is directed to giving the Court the information it needs to decide which cases are legally important and to know what kind of guidance the lower courts are likely to require.

I. The Strategic Importance of Unimportance

Is it important that the Supreme Court take on the important policy issues of our times? That the Court has traditionally done so is a commonplace, but whether the commonplace is true depends on how we phrase the question. Asking whether much of what the Supreme Court does is important is very different from asking whether much of what is important is done by the Supreme Court, and without knowing which we are asking, we cannot intelligently evaluate the Court’s case selection process.

The difference between how much of what the Court does is important and how much of what is important the Court does emerges upon even a casual glance at the daily newspapers. Although the Court has in recent years addressed important issues of gun control, campaign finance, burdens on interstate commerce, capital punishment, punitive damages, presidential power, detention of enemy combatants, sexual orientation, and religion in the public sphere, among many others, it has decided no cases determining the authority of a President to commit troops to combat outside of the United States, whether in Afghanistan, Iraq, Kosovo, or anywhere else. Although, of course, the Supreme Court’s structural and procedural decisions will have an indirect impact on the substance of policy, the Court has not directly decided cases involving health care policy, federal bailouts of banks and automobile manufacturers, climate change, the minimum wage, and the optimal rate of immigration. And nothing the Court has decided for years is even in the neighborhood of addressing questions involving mortgage defaults, executive compensation, interest rates, Israel and Palestine, the nuclear capabilities of Iran and North Korea, gasoline prices, and the creation of new jobs.

This list of issues the Supreme Court has not addressed was not, of course, chosen randomly. Rather, it is a list of the issues that dominate public and political discourse today, a list that might be surprising to some in terms of its distance from what the Supreme Court is actually doing. A few years ago I wrote about this gap between what the public cares about and the issues the Supreme Court engages, and updating the data three years later does not change the general picture. When asked in nonprompted fashion to name the most important issues facing the country, Americans overwhelmingly name health care and the economy first and second, and also identify as among the most important issues the wars in Iraq and Afghanistan, employment/jobs, education, and, more recently, immigration, an array of topics at the top of the “most important issues” poll that has varied little for the past eight years. In the most recent poll, from September 2009, health care was first, the economy second, employment/jobs third, budget/government spending fourth, and immigration fifth, then followed by education, the war, taxes, the environment, Iraq, homeland/domestic security, and regulation of banking and the financial services industry. Indeed, looked at more broadly, the 2009 list resembles those for much of the past three decades. Crime is occasionally more salient, as it was in the mid-1960s and mid-1990s, and the interrelated issues of pensions, retirement, and Social Security have often ranked high, but the most recent lists capture not only the long-standing importance of basic foreign policy and economic issues, but also the persistent nonappearance in the top ten (and usually even in the top twenty) of abortion, sexual orientation, race, gender, religion, free speech, and many of the other issues that represent the most salient part of the Supreme Court’s docket. In September 2009, for example, abortion ranked twenty-fourth, judicial and legal issues twenty-fifth, same sex rights twenty-eighth, crime and violence twenty-ninth, religion thirty-eighth, and gun rights forty-second.

When importance is measured by what the public and their elected representatives think is important, therefore, and by what the government actually works on, the Supreme Court’s docket seems surprisingly peripheral. That is not to say that what the Supreme Court does is not important. It is to say, however, that the Court’s actual business is less important to the public and to the public’s representatives than lawyers and law professors tend to believe. And it is hardly clear that there is anything wrong with this. By dealing either with low-controversy issues or with high-controversy, low-salience issues, and thus generally avoiding high-controversy, high-salience issues such as health care and the war in Afghanistan, the Court may possibly be attempting to retain that degree of public confidence and thus that quantum of empirical (or sociological) legitimacy that is necessary to secure at least grudging acquiescence in its most controversial decisions. We do not know the extent to which the Court’s avoidance of high-salience, high-controversy cases is deliberate, but whether deliberate or not it does seem plausible to hypothesize a relationship between the Court’s avoidance of these cases and the high esteem in which the Court continues to be held.

II. Measuring Legal Importance

It is one thing to recognize the strategic value of the Court’s avoidance of most of the publicly important issues, but quite another to see much value in Supreme Court avoidance of legally important issues—issues and question that are important in litigation and to lawyers and judges. Although even this claim requires further specification of what it means for an issue or case to be legally important, at least one measure would be the extent to which the issue frequently appears in lower court litigation. If that is the measure, however, then there is some evidence that the Supreme Court is little more inclined to take on legally important issues than to take on publicly important ones.

Limitations of space make it impossible in the present context to offer a full empirical analysis and support for this claim, but a few examples can suggest a hypothesis. Consider, therefore, the universe of litigation under the First Amendment’s Speech and Press Clauses. This is a large universe, especially in the federal courts, and a surprisingly large part of that universe is occupied by free speech issues arising in public employment and the public schools. The combination of these domains and their issues involving student and teacher speech, employee speech, organizational membership, and related topics is substantially larger than the quantity of lower court First Amendment cases dealing with the combination of obscenity and indecency, to say nothing of the even smaller domains of incitement, defamation, and the numerous other topics that dominate the casebooks. Yet although schools and public employee cases overwhelm the other categories of First Amendment litigation in the lower courts, the Supreme Court takes surprisingly few such cases. It has in roughly forty years taken only four cases involving speech in the public schools, two dealing directly with speech in colleges and universities, and eight that concern the free speech rights of various public employees. Although the quantity of litigation about speech in the schools and sexual speech is roughly the same (recognizing that there is some overlap), in the same period that the Supreme Court decided its four public school speech cases it decided at least thirty-seven dealing with obscenity, pornography, profanity, and indecency.

That the Supreme Court tends to take few cases in a number of high-litigation areas would be of less moment if the cases it did take were representative, and the decisions it issued useful in terms of providing guidance. But in fact neither of these occur. In Morse v. Frederick, for example, the “Bong Hits 4 Jesus” case, the Court, in deciding only its fourth student speech case ever and the first in more than a decade, took and decided a case that was highly unrepresentative of the student speech cases that bedevil the lower courts. And having taken the case, the majority issued an opinion that was so narrow, so case-specific, and so idiosyncratically about alleged encouragement of drug use as to provide virtually no guidance to the courts that have to deal with student speech issues.

Morse v. Frederick is hardly unusual. On a large number of issues of regulatory law, constitutional law, criminal procedure, and others, the Court’s cases have been similarly unrepresentative and its decisions similarly unhelpful. And thus if frequency of litigation in the lower courts combined with unanswered questions about the state of the law is some indication of legal, even if not political, importance, then the Court’s record of taking legally important cases is little stronger than its record of taking socially important cases, but with far less justification.

III. Information About Importance and the Importance of Information

When appellate courts make decisions, they engage in (at least) two tasks. First, they determine the outcome of the dispute between the actual parties to the litigation. And, second, they often set forth a rule that governs large numbers of other acts and events. In order to perform the latter task adequately, however, courts need to have some sense of the array of events that some putative rule, standard, policy, or test will control. The problem, however, is that courts find themselves suffering from a structural inability to obtain just that kind of information.

First, courts are of course not well situated to go out and actually research the field of potential application of some rule. Occasionally, one of the parties might do this in a brief, but it is rare, and even at the Supreme Court level amicus briefs seldom serve this function. None of the amicus briefs in Morse, for example, offered to tell the Supreme Court anything about the array of lower court litigation, and not even very much about the nonlitigated terrain that the Court’s decision would affect.

Second, everything we know about the availability heuristic and related phenomena tells us that a court attempting to craft a rule in the mental thrall of the particular case before it will likely assume, often inaccurately, that the case before it is representative of the larger field. And the fact that the court is obliged to decide that case as well as, often, to set forth a rule, or at least a precedent, means that the obligations to the case at hand may exacerbate the informational distorting effect.

Finally, and most importantly, the selection effect—the process by which cases with certain characteristics get to appellate courts and other cases with different characteristics do not—will almost certainly provide a serious distortion of information. Whenever the Supreme Court—or any court—sets forth a rule, standard, principle, test, or whatever, it creates the possibility of three different forms of behavior on the part of those governed by the rule. One is compliance, another is violation, and the third is what Gillian Hadfield has called “dropping out,” ceasing to engage in the behavior the rule seeks to regulate. So when the Court decided Miranda v. Arizona, for example, it created a world in which some police officers complied with Miranda by giving the required warnings before custodial interrogation, others violated by conducting custodial interrogations without giving warnings, and some stopped conducting custodial interrogations.

The selection problem arises, in part, because the courts will never see the dropout cases, and will rarely see the compliance cases. By seeing only the violations, therefore, they find themselves subject to a severe information distortion because they have not seen the cases of compliance and have not seen the dropouts. And insofar as this process is exacerbated as litigation ascends the appellate ladder, the Supreme Court, even taking into account the information provided by amicus briefs, the research done by the Justices and their clerks, and the fact that the Justices read the newspapers, will be at a severe informational disadvantage in deciding which cases to decide and how broadly or narrowly to decide them. Did the Court, when it granted certiorari in Morse, know how often student speech cases arise in the lower courts, and what kinds of cases they were? When the Court decided Morse on such idiosyncratic and narrow grounds, did it know what kinds of issues were arising in the cases below that it was not deciding? And, perhaps most importantly, did the Court know any of these things when it decided not to grant certiorari in numerous student speech cases in the almost two decades between Morse and its previous student speech cases? It is plausible that the answer to all of these questions is “no,” and plausible to suppose that the cause is a combination of structural informational disadvantage and psychological difficulty in seeing beyond the particular case and its particular parties and particular facts. More broadly, however, the problem may lie in the Court’s unwillingness to recognize fully the costs of nondecision. Judge Wilkinson applauds the Court for minimizing the number of cases it takes, arguing that such an approach reduces the “opportunities . . . for mistakes.” Such a view, however, assumes that Supreme Court mistakes are only mistakes of commission and not of omission. One way of understanding my argument in this Essay, therefore, is as a call to recognize that there can be errors of inaction as well as of action, and that it is an error to engage in a process of institutional design without taking into account the likelihood and harm of errors of mistaken inaction along with those of mistaken action.

IV. A Partial Solution?

There may not be an easy solution to this serious informational problem, but it is nevertheless the case that informational problems demand informational solutions. Putting aside important resource and resource allocation issues, we can ask whether the Supreme Court could create a process by which a few law clerks—a variation on the “cert pool”—did serious research for the use of all of the Justices about the frequency and nature of litigation below—not only for the cases in which certiorari was granted, but for the cases in which certiorari was seriously considered. Or could the Court demand such information from litigants and amici, either formally, or, more plausibly, informally, by signaling that petitions and briefs that did not contain a fair and comprehensive survey of the terrain of lower court litigation would be disfavored in the certiorari process? I do not know the answers to these questions, but they suggest that there are steps that might be taken or procedures that might be established to provide better information to the Court when it is deciding to grant or to deny certiorari, when it is deciding how broadly or narrowly to decide the cases it does take, and when the Justice writing for the majority decides how important it is, on the one hand, to write narrowly to keep the Court’s options open, or to write broadly in order to provide needed guidance, on the other. This information would go a long way towards making available the information the Court needs, or at least should need, in thinking about the legally important but publicly invisible issues it is neglecting to address, and in considering the actual nature of the legal and social terrain that will be affected by the rules it makes, the precedents it creates, the cases it decides, and the issues it ignores.

Frederick Schauer is the David and Mary Harrison Distinguished Professor of Law, University of Virginia. This Essay is based on remarks delivered at the Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online’s conference on “Assessing the Supreme Court’s Case Selection Process,” held at the National Press Club in Washington, D.C. on September 18, 2009. The author is grateful to Robert Blendon for assistance with poll results.

Preferred Citation: Frederick Schauer, Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process, 119 YALE L.J. ONLINE 77 (2009), available at http://yalelawjournal.org/2009/12/09/schauer.html.

The Yale Law Journal Online is reissuing Elizabeth Pollman's Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech in light of recent developments at the Supreme Court.

With the Supreme Court hearing a new round of oral arguments in Citizens United v. Federal Election Commission, the Court appears poised to alter dramatically the landscape of corporate political speech law. The case concerns whether the government may limit a nonprofit political advocacy group from showing a film during election season when the film casts an electoral candidate in a negative light and is financed in part by corporate donations. 

International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Paulsen’s essay, The Constitutional Power To Interpret International Law, might be forgiven for missing these important trends, because rather than focus on the ubiquity of international law and the myriad ways in which it has permeated U.S. legal, social, economic, and political life, Paulsen returns us to old arguments over whether international law is “law” or presents any binding restraints on domestic actors. This claim is based on a static, formalist approach to the foreign affairs Constitution that stands in contrast to the dynamic realities of transnational lawmaking today.

There is much to admire in Michael Stokes Paulsen’s elegant and bold polemic on the Constitution and international law. Paulsen deserves substantial praise both for offering a clear and accessible theory of the Constitution and international law, and for then bravely taking that theory to its logical though controversial conclusions. He rightly emphasizes that the Constitution is supreme over international law and that the political branches, Congress, and the President, have an independent and dominant role in the interpretation of international law’s effect on the United States. He also properly criticizes those who have used their interpretations of international law to support highly politicized attacks on the Bush Administration’s war on terrorism policies.

Four authors respond to Michael Stokes Paulsen's The Constitutional Power To Interpret International Law, printed in Volume 118, Issue 8 of the Journal. Robert Ahdieh, Julian Ku, Margaret McGuinness, and Peter Spiro contributed their reactions to, and critiques of, this Essay for YLJ Online.

The Yale Law Journal is pleased to announce the launch of The Yale Law Journal Online in the Fall of 2009. YLJ Online will integrate the current features of The Pocket Part with additional fora for legal scholarship. The YLJ Online Committee will continue to consider submissions under The Pocket Part's guidelines and submissions system throughout the summer.