Evaluación al Sistema de Control Interno

Before the writs of certiorari are decided, some petitions—a short list of petitions the Justices feel are worth the extra attention—are placed on the Discuss List. The Court eventually creates its agenda from the discuss list for the upcoming term, with approximately 7% to 9% of petitions making it to the list. The factors currently known to impact the likelihood of petitions being placed on the discuss list include amicus briefs, S.G. involvement, and the ideological distance between the lower court and the Supreme Court (Caldeira and Wright 1990). However, I argue that there exists another influence on the discuss list—public attention to the petition’s issue area. Others have argued similarly, essentially that the justices and clerks are all a part of the society and likely know if an issue is particularly salient when they are reviewing petitions (Giles, Blackstone, and Vining 2008; Baum 2009; Fix 2014).

Understanding which factors influence the decision of placing a petition on the discuss list and granting of certiorari is important because of the clear link between the agenda-setting function of the Court and their ultimate decisions. Thus, when controlling for other known influences on the discuss list, I argue that high public salience to an issue will exert its own effect

via the actions of outside actors. These outside actors take notice of the public’s attention and file amicus briefs or petitions to the Court in situations they might not have otherwise.

In the Judiciary, there are two ways in which the Court can give attention to an issue; the discuss list and granting of certiorari. Litigants need to persuade the Court to give their petition attention, and the first hurdle they need to overcome is making it to the discuss list. The discuss list has origins in the mid-1900s after the Supreme Court was given discretionary jurisdiction with the Judiciary Act of 1925. Immediately following the Judiciary Act, the justices created a “dead list”, or cases not to be discussed. Later, the dead list was dropped in favor of a “discuss” list. Justice Stevens describes it: “In the 1975 Term, when I joined the Court, I found that other procedural changes had occurred. The 'dead list' had been replaced by a 'discuss list'; now the chief justice circulates a list of cases he deems worthy of discussion and each of the other

members of the Court may add cases to it" (Stevens 1983, 13). Stevens (1983) argues the change from dead list to discuss list was meaningful, as it changed how attention was given to each petition. Originally, every petition was debated unless it was placed on the dead list, and now no petition is discussed unless it is placed on the discuss list. Rarely do the justices browse the full list of petitions; clerks who make up the certiorari pool largely analyze the petitions first.

Caldeira and Wright (1990) examine what aspects of petitions increase the likelihood that the Court will place them on the discuss list. Variables such as the U.S. being a party, lower court conflicts, issue areas (Civil Liberties), ideological distance, and amicus curiae participation were tested. Some aspects have a strong impact on the likelihood of making it to the discuss list:

If all of the qualities except the United States as a petitioner, amicus briefs, and real conflict are present in a case, it [petition] has a .39 probability of making the discuss list. The addition of an amicus curiae brief increases the probability of discussion to .74. Similarly, on the decision on a writ of certiorari absent the United States as a petitioner, an amicus brief, and actual conflict, the addition of an amicus brief more than doubles its

chances. The message seems clear: organized interests as amici curiae perform an especially central role in both stages of the decision. (Caldeira and Wright 1990, 831). In addition, the authors find that the S.G. gets over 90% of the cases they are a part of placed on the discuss list, and more amicus briefs further increase the likelihood of placement on the list.

The Court needs legitimacy from the public to operate and cannot enforce decisions alone, meaning opinions of other government institutions and the public are likely considered (Caldeira 1986; Caldeira and Gibson 1992; Gibson and Caldeira 1998; Ignagni and Meernik 1994; Bailey, Kamoie, and Maltzman 2005; Hettinger and Zorn 2005; Curry, Pacelle, and Marshall 2008; Hall 2014; Gibson and Nelson 2015). While the Court does have a reliance on other institutions, generally, their decisions are carried out and executed faithfully (Curry 2007; Chutkow 2008; Carrubba and Zorn 2010). Indeed, some argue that compliance from other

government institutions is due to the high amounts of support and legitimacy for the Court, given by the public.

I argue and explore more in depth in chapter 6 about public attention being another yet- to-be-tested impact on the discuss list. I posit that when an issue is highly salient among the public, the Court will spend more time deliberating petitions related to the salient issue area. This is not due to the Justices wishing to appease the public or out of fear of retribution from other branches, but because the outside actors change their behavior (i.e. file more briefs / convince the Court it is worth the time) which influences the Justices to do so.

Either due to concerns about maintaining their legitimacy, replacing the justices, or wanting to tackle issues the public cares about, the Court generally tracks public opinion at the merits stage. Some argue that the Court’s mechanism of following public opinion at the merits stage is due to the replacement of justices over time (Norpoth and Segal 1994; Giles, Blackstone

and Vining 2008) or due to constraints perceived from other elected branches (Chutkow 2008; Harvey and Friedman 2009). The public elects the President who selects future justices, as well as the senators who confirm them. Thus, the installation of a new justice would then be reflective of public opinion at that time. Others argue that public opinion produces a real constraint on judicial decision making at the merits stage, regardless of the changes in composition of the justices (Mishler and Sheehan 1993; Stimson, MacKuen, and Erikson 1995; Hurwitz, Mishler, and Sheehan 2004; McGuire and Stimson 2004; Casillas, Enns and Wohlfarth 2011).

I present a detailed argument in Chapter 6 about if the Court decides cases with an eye to public opinion at the merits stage, the justices may also do so during the certiorari process. The justices and their clerks are a part of the society and it is a reasonable assumption they are aware of the issues that are salient to the public at any given time (Caldeira and Wright 1990; Giles, Blackstone, and Vining 2008; Baum 2009; Fix 2014). Chapter 6 specifically examines how public attention influences the amount of time the Court spends on each petition.