Constraining certiorari using administrative law principles

University of Pennsylvania Law Review

Volumn 160, Issue 1, 2011, Pages 1-68

  Watts, Kathryn A ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 83355169293     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (245)

1. Cf. Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643, 1645 (2000)
2. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).
3. See EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 321 (9th ed. 2007) ("During the nine terms from 1992 to 2002, the Court granted 1.19 percent of the cer-tiorari petitions filed.")
4. see also The Supreme Court, 2008 Term-The Statistics, 123 HARV. L. REV. 382, 389 (2009) (noting that the Court granted review in 87 cases on the Court's appellate docket out of 7868 total petitions, leading to a 1.1% grant rate)
5. The Supreme Court, 2007 Term-The Statistics, 122 HARV. L. REV. 516, 523 (2008) (noting that the Court granted review in 95 cases on the Court's appellate docket out of 8374 total petitions, also leading to a 1.1% grant rate). If only paid petitions are considered, the grant rate goes up, whereas if only in forma pauperis petitions are considered, the grant rate goes down
6. See, e.g., William J. Brennan, Jr., The National Court of Appeals, 40 U. CHI. L. REV. 473, 482 (1973)
7. ("[T]he screening function is inextricably linked to the fulfillment of the Court's essential duties and is vital to the effective performance of the Court's unique mission 'to define [and vindicate] the rights guaranteed by the Constitution, to assure the uniformity of federal law, and to maintain the constitutional distribution of powers in our federal union.'" (quoting FED. JUDICIAL CTR., REPORT OF THE STUDY GROUP ON THE CASELOAD OF THE SUPREME COURT (1972), reprinted in 57 F.R.D. 573, 578 (1972) [hereinafter FREUND REPORT]))
8. Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection, 82 WASH. U. L.Q. 389, 397 (2004)
9. Margaret Meri-wether Cordray & Richard Cordray, Strategy in Supreme Court Case Selection: The Relation-ship Between Certiorari and the Merits, 69 OHIO ST. L.J. 1, 1 (2008)
10. [hereinafter Cordray & Cordray, Strategy in Supreme Court Case Selection] (noting that certiorari is "[o]ne of the most critical aspects of the Supreme Court's work").
11. Sanford Levinson, Assessing the Supreme Court's Current Caseload: A Question of Law or Politics?, 119 YALE L.J. ONLINE 99, 101 (2010), http://yalelawjournal.org/2010/02/ 01/levinson.html.
12. See, e.g., Amanda L. Tyler, Setting the Supreme Court's Agenda: Is There a Place for Certification?, 78 GEO. WASH. L. REV. 1310, 1310 (2010)
13. Richard J. Lazarus, Docket Capture at the High Court, 119 YALE L.J. ONLINE 89, 89 (2009), http://yalelawjournal.org/2010/01/24/lazarus.html (arguing that "the Court's ple-nary docket is increasingly captured by an elite group of expert Supreme Court advo-cates" and suggesting that "[i]t is, accordingly, not the number of cases on the plenary docket but rather their content that is the real problem")
14. See Paul D. Carrington & Roger C. Cramton, Judicial Independence in Excess: Re-viving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587, 591 (2009)
15. In contrast to the general lack of scholarship connecting administrative law principles and certiorari, a few scholars have connected administrative law principles and judicial decisionmaking on the merits. See, e.g., DANIEL A. FARBER & SUZANNA SHERRY, JUDGMENT CALLS: PRINCIPLES AND POLITICS IN CONSTITUTIONAL LAW 40-42 (2009)
16. Michael Abramowicz & Thomas B. Colby, Notice-and-Comment Judicial Decisionmaking, 76 U. CHI. L. REV. 965, 1002 (2009) (arguing that federal courts should subject judicial opinions on the merits to a notice-and-comment system).
17. Cf. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 127 (1962) (noting that "Congress has granted the ju-risdiction" but that "[i]t is the Supreme Court that makes the exceptions, and it does so by the case, not by the category; and that is what happens, even though the excep-tions are the cases that are heard rather than those that are dismissed"). This Article, however, does not resolve this constitutional question.
18. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).
19. Jeremy Buchman, Judicial Lobbying and the Politics of Judicial Structure: An Exami-nation of the Judiciary Act of 1925, 24 JUST. SYS. J. 1, 2 (2003)
20. see also RICHARD H. FAL-LON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 30 (6th ed. 2009) (noting that the "principle of discretionary review" was introduced by the Evarts Act (citing Act of Dec. 23, 1914, ch. 2, 38 Stat. 790 (codified as amended at 28 U.S.C. §1257 (2006)))).
21. see also DORIS MARIE PROVINE, CASE SE-LECTION IN THE UNITED STATES SUPREME COURT 9-10 (1980) ("Under the Constitu-tion, Congress has the responsibility to determine the appellate jurisdiction of the United States Supreme Court.").
22. See Judiciary Act of 1789, ch. 20, §§2-4, 1 Stat. 73, 73-75 (creating the thirteen district courts and the Eastern, Middle, and Southern circuits)
23. see also FELIX FRANK-FURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 11 (Transaction Publishers 2007) (1928) (describing the Judiciary Act of 1789).
24. Peter Linzer, The Meaning of Certiorari Denials, 79 COLUM. L. REV. 1227, 1230 (1979)
25. see also Judiciary Act of 1789, §§21-22, 1 Stat. at 83-84 (providing appellate ju-risdiction to the circuit courts in limited circumstances)
26. See generally Frank J. Goodnow, The Writ of Certiorari, 6 POL. SCI. Q. 493, 493 (1891) (describing how the writ of certiorari, like most of the English writs, "was origi-nally a prerogative writ")
27. Harold Weintraub, English Origins of Judicial Review by Preroga-tive Writ: Certiorari and Mandamus, 9 N.Y. L.F. 478, 504 (1963) (noting that the early writ of certiorari "was technical nomenclature denoting that certain records or docu-ments were certified and transmitted at the request of the Crown" and explaining that "[i]n the late Tudor period, certiorari still retained its narrow, mechanical function and was widely used in criminal proceedings, to bring up records on appeal and to se-cure certification of official acts").
28. Am. Constr. Co. v. Jacksonville, Tampa & Key W. Ry. Co., 148 U.S. 372, 380 (1893)
29. see also United States v. Dickinson, 213 U.S. 92, 102 (1909) (explaining that the writ was used more frequently in England than in the United States)
30. WILLIAM H. REHNQUIST, THE SUPREME COURT 236 (2001).
31. REYNOLDS RO-BERTSON & FRANCIS R. KIRKHAM, JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES §310, at 589
32. (Richard F. Wolfson & Philip B. Kurland eds., Matthew Bender & Co. 1951) (1936) ("The use of certiorari as an ordinary appellate process had its incep-tion in section 6 of the Circuit Court of Appeals Act of March 3, 1891." (citing ch. 517, 26 Stat. 826, 828))
33. see also LAWRENCE BAUM, AMERICAN COURTS: PROCESS AND POLICY 264 (1986) ("The discretionary jurisdiction of some appellate courts over most types of cases is linked to the creation of appellate systems with two levels.").
34. See Act of Mar. 3, 1891, §§5-6, 26 Stat. at 827-28
35. See Cunard S.S. Co. v. Fabre, 13 S. Ct. 1045, 1045 (1892) (granting certiorari without further opinion)
36. Lau Ow Bew's Case, 141 U.S. 583, 589 (1891) (granting certiorari but advising that "this branch of our jurisdiction should be exercised sparingly and with great caution")
37. see also Am. Constr. Co. v. Jacksonville, Tampa & Key W. Ry. Co., 148 U.S. 372, 383-84 (1893) (noting that Lau Ow Bew's Case and Cunard Steamship were the only two cases in which the Court had granted certiorari).
38. Dick v. N.Y. Life Ins. Co., 359 U.S. 437, 459 (1959) (Frankfurter, J., dissenting).
39. See, e.g., Procedure in Federal Courts: Hearing on S. 2060 Before a Subcomm. of the S. Comm. on the Judiciary, 68th Cong. 45 (1924)
40. See Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 CORNELL L. REV. 1, 50-51 (2009) (identifying reasons for the growth of the Supreme Court's dock-et in the latter half of the twentieth century).
41. See Thomas E. Baker & Douglas D. McFarland, The Need for a New National Court, 100 HARV. L. REV. 1400, 1402 (1987) ("The pattern has been clear: as the nation's population and economy have grown and as legal assistance has become more widely available, the number of cases filed in federal courts, the number of federal judges, and the Supreme Court's docket have grown concurrently.")
42. Supreme Court Case Selections Act of 1988, Pub. L. No. 100-352, 102 Stat. 662.
43. see also, e.g., The Su-preme Court, 2009 Term-The Statistics, 124 HARV. L. REV. 411, 418 (2010) (showing 9296 total cases on the Court's paid and in forma pauperis appellate docket during the 2009 Term).
44. This phrase is taken from Deciding to Decide, H.W. Perry's famous book. H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT (1991).
45. See, e.g., Margaret Meriwether Cordray & Richard Cordray, Setting the Social Agenda: Deciding to Review High-Profile Cases at the Supreme Court, 57 U. KAN. L. REV. 313, 314-15 (2009) (arguing that the Court's certiorari decisions set the national political and cultural agenda and determine the Court's "institutional and moral authority")
46. Adam Liptak, A Second Justice Opts Out of a Longtime Custom: The 'Cert. Pool,' N.Y. TIMES, Sept. 26, 2008, at A21 (noting that Justice Alito, like Justice Stevens before him, has opted out of the "cert. pool" and comparing the advantages and disadvantages of participation).
47. See Carolyn Shapiro, The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court, 37 FLA. ST. U. L. REV. 101, 110 (2009) (describing the creation of the cert pool in 1972 and its functions)
48. Andrew F. Hessick & Samuel P. Jordan, Setting the Size of the Supreme Court, 41 ARIZ. ST. L.J. 645, 703-04 (2009) ("The [cert] pool thus seeks both to avoid unnecessary redundancy-each Justice and his clerks independently summarizing the facts and legal issues of a case-by dividing that work among the various clerks, and to preserve the important redundancy of each Justice independently voting whether to grant review."). Other actions that might be recommended by a pool clerk include calling for the views of the Solicitor General or requesting a response from the res-pondent.
49. See David R. Stras, The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 TEX. L. REV. 947, 991 (2007) (book review) (cataloguing cert pool recommendations in certain years from 1984 through 1992, which include actions other than simply granting or denying certiorari).
50. See generally Gregory A. Caldeira & John R. Wright, The Discuss List: Agenda Building in the Supreme Court, 24 LAW & SOC'Y REV. 807, 808 (1990) (examining the "composition, sources, and implications" of the discuss list)
51. John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. L. REV. 1, 13 (1983) (noting the historical evolution from the use of a "dead list," on which only those petitions that would be automatically denied were listed, to a "discuss list").
52. Ruth Bader Ginsburg, Thomas Jefferson Lecture: Workways of the Supreme Court (Feb. 6, 2003), in 25 T. JEFFERSON L. REV. 517, 519-20 (2003)
53. See, e.g., Alderman v. United States, 131 S. Ct. 700, 702 (2011) (Thomas, J., dis-senting from denial of certiorari) ("It is difficult to imagine a better case for certiorari.")
54. Nurre v. Whitehead, 130 S. Ct. 1937, 1940 (2010) (Alito, J., dissenting from denial of certiorari) ("A decision with such potentially broad and troubling implications merits our review.")
55. see also Singleton v. Comm'r, 439 U.S. 940, 944-46 (1978) (Stevens, J., respecting the denial of certiorari) (discussing the increase in the practice of dissent-ing from denials of certiorari and whether these dissents serve any purpose)
56. Adam Liptak, Sotomayor Guides Court's Liberal Wing, N.Y. TIMES, Dec. 28, 2010 at A10 (noting that just months into the 2010 Term, Justice Sotomayor had exercised her discretion to write three dissents from certiorari denials).
57. Wyeth v. Levine, 129 S. Ct. 1187, 1193 (2009) (granting certiorari because of the importance of the preemption issue at stake and because the relevant agency had changed its opi-nion)
58. Gonzales v. Raich, 545 U.S. 1, 9 (2005) ("The obvious importance of the case prompted our grant of certiorari.").
59. See 3 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE §17.1, at 1231 (4th ed. 2002) ("Much of administrative law is a response to the existence of broad discre-tionary power in government officials.")
60. But see J. Harvie Wilkinson III, If It Ain't Broke . . . , 119 YALE L.J. ONLINE 67, 68-72 (2010), http://yalelawjournal.org/ 2010/01/07/wilkinson.html (defending the status quo in the certiorari context).
61. See Margaret Cordray & Richard Cordray, Numbers That Don't Befit the Court, WASH. POST, July 11, 2006, at A17 ("During the term just concluded, the court issued a grand total of 71 plenary decisions (in cases with full argument)-its lowest output since the Civil War.")
62. Philip Allen Lacovara, The Incredible Shrinking Court, AM. LAW., Dec. 2003, at 53, 53 (noting that "[i]f their productivity were measured by private sec-tor standards, the Supremes might receive pink slips")
63. Adam Liptak, Justices Opt for Fewer Cases, and Professors and Lawyers Ponder Why, N.Y. TIMES, Sept. 29, 2009, at A18 (discussing possible reasons for the Court's shrinking docket).
64. Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of Wil-liam Howard Taft, 90 MINN. L. REV. 1363, 1368 (2006).
65. Arlen Specter, The Chamber of Secrets, NAT'L L.J., Aug. 3, 2009, at 38.
66. See, e.g., Carolyn Shapiro, The Limits of the Olympian Court: Common Law Judging Versus Error Correction in the Supreme Court, 63 WASH. & LEE L. REV. 271, 287-90 (2006) (decrying the Court for failing to distinguish between rules and standards in certiorari decisions).
67. See Four Proposals for a Judiciary Act, PAUL DEWITT CARRINGTON (Feb. 9, 2009), http://paulcarrington.com/Four%20Proposals%20for%20a%20Judiciary%20Act. htm (laying out this and three other suggested reforms).
68. See Massachusetts v. EPA, 549 U.S. 497, 514 (2007) (reviewing the EPA's refusal to regulate greenhouse gas emissions).
69. See U.S. CONST. art. III, §2 (providing that "the supreme Court shall have ap-pellate Jurisdiction" over certain types of cases "with such Exceptions, and under such Regulations as the Congress shall make" (emphasis added)).
70. See Massachusetts, 549 U.S. at 533-34 (holding that the Clean Air Act empowers the EPA to regulate new motor vehicle greenhouse gas emissions and concluding that the agency's reasons for denying a rulemaking petition were arbitrary and capricious).
71. See Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, §3, 123 Stat. 1776, 1781 (2009) (codified at 21 U.S.C. §387 note (2006 & Supp. 2010)).
72. See Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 440-41 (1987) (suggesting that the increase in grants of authority to regulatory agencies during the New Deal was motivated in part by a conception of administrative agencies "as politically insulated, self-starting, and technically sophisticated")
73. Alexander Dill, Comment, Scope of Review of Rulemaking After Chadha: A Case for the Delegation Doctrine?, 33 EMORY L.J. 953, 953 (1984)
74. Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 412 (2008).
75. MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 142 (1995)
76. see also JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 131-34 (1980) (discussing the incentives for, and problems raised by, risk-averse legislators passing off substantive and contentious policy decisions onto "executive-branch bureau-crat[s]" and "independent regulatory comission[s]").
77. See generally DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DEL-EGATION 99-152, 155-77 (1993) (criticizing Congress's delegation to administrative agen-cies and suggesting a revival of the nondelegation doctrine).
78. See generally KEITH WERHAN, PRINCIPLES OF ADMINISTRATIVE LAW 31 (2008) ("Americans have relied on administrative law to ensure that agencies perform [their] functions with due regard for the rule of law, a proper respect for individual rights, and a sense of fidelity to our deepest constitutional commitments.").
79. See U.S. CONST. art. III, §2 (providing that "the supreme Court shall have ap-pellate Jurisdiction" over certain types of cases "with such Exceptions, and under such Regulations as the Congress shall make" (emphasis added)).
80. Cf. James F. Blumstein, The Supreme Court's Jurisdiction-Reform Proposals, Discre-tionary Review, and Writ Dismissals, 26 VAND. L. REV. 895, 907 (1973) ("The kinds of ju-risdictional decisions that Congress normally makes for the federal judiciary as a whole it delegated to the Justices through passage of the 1925 Act.")
81. Daniel J. Meador, Rein-ing in the Superlegislature: A Response to Professors Carrington and Cramton, 94 CORNELL L. REV. 657, 660 (2009) ("Eighteenth- and nineteenth-century jurists would have found the concept [of discretionary appellate jurisdiction] novel and inconsistent with the role of a court, especially in a separation-of-powers regime.").
82. See SUP. CT. R. 10 ("A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.").
83. Some have implied otherwise, suggesting that the Court's power to set its own docket is an inherent judicial function. For example, Justice Arthur Goldberg once stated that "[t]he power to decide cases presupposes the power to determine what cas-es will be decided." Retired Chief Justice Warren Attacks, Chief Justice Burger Defends Freund Study Group's Composition and Proposal, 59 A.B.A. J. 721, 730 (1973) (statement of Chief Justice Earl Warren) (quoting Justice Goldberg)
84. Jurisdiction of Circuit Courts of Appeals and United States Supreme Court: Hearing on H.R. 10479 Before the H. Comm. on the Judiciary, 67th Cong. 26 (1922) (statement of James M. Beck, Solicitor General).
85. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 504-20 (2002) (describing the creation of new agencies and the delegation of power to agencies in the Progressive and New Deal eras). Increased delegation to the Court via the Judges' Bill also occurred less than a decade prior to the passage of the Rules Enabling Act of 1934, which gave the Supreme Court the power to prescribe general rules for the district courts.
86. See Rules Enabling Act of 1934, Pub. L. No. 73-415, 48 Stat. 1064 (codified as amended at 28 U.S.C. 2072 (2006))
87. U. PA. L. REV. 1015 (1982) (providing a de-tailed overview of the Rules Enabling Act).
88. RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW 7 (2008). However, in recent years, some scholars and judges have questioned this view.
89. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 489 (2001) (Stevens, J., joined by Souter, J., concurring in part and concurring in the judgment) (noting that the text of Article I's Vesting Clause "do[es] not purport to limit the authority of [Congress] to delegate authority to others")
90. Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclu-sive Delegation, 104 COLUM. L. REV. 2097, 2109-14, 2165-66 (2004) (arguing for an ex-clusive delegation doctrine under which Congress has the exclusive power to decide when and whether to delegate lawmaking powers).
91. But see Jerry L. Mashaw, Prodelegation: Why Administra-tors Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 95-96 (1985) (arguing that in light of the existence of presidential elections, "it may make sense to imagine the dele-gation of political authority to administrators as a device for improving the responsive-ness of government to the desires of the electorate").
92. The Court has upheld many vague delegations of power, such as delegations to regulate in the "public interest." See NBC v. United States, 319 U.S. 190, 225-26 (1943) (upholding Congress's delegation to the FCC to regulate broadcasting licensing "as pub-lic interest, convenience, or necessity" warrant)
93. United States v. Rock Royal Coop., Inc., 307 U.S. 533, 576-77 (1939) (upholding Congress's delegation to the Secretary of Agriculture to regulate milk prices in the "public interest"). Indeed, the Supreme Court has found the requisite intelligible principle lacking in only two cases, both involv-ing delegations found in the National Industrial Recovery Act of 1933 (NIRA).
94. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 541-42 (1935)
95. (ruling that section 3 of the NIRA was an unconstitutional delegation of legislative power to the President); Pan. Ref. Co. v. Ryan, 293 U.S. 388, 414-19 (1935) (ruling that section 9(c) of the NIRA was an unconstitutional delegation of legislative power).
96. See, e.g., Petition for a Writ of Certiorari at i, 11-24, Defenders of Wildlife v. Chertoff, 554 U.S. 918 (2008) (No. 07-1180), 2008 WL 727967 (arguing that section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is an unconstitutional delegation of legislative power)
97. Gary Lawson, Delegation and Origi-nal Meaning, 88 VA. L. REV. 327, 330 (2002) (noting a "series of attempts by lawyers and judges in the past decade" to keep the nondelegation doctrine alive).
98. See, e.g., Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 33-40 (D.C. Cir. 2008) (Brown, J., dissenting) (arguing that a statute giving the Secretary of the In-terior the power to acquire lands "in his discretion" violated the nondelegation doc-trine)
99. Am. Trucking Ass'ns v. EPA, 175 F.3d 1027, 1034-40 (D.C. Cir. 1999)
100. (holding that the EPA had relied on a construction of its authority-granting statute that violated the nondelegation doctrine), aff'd in part, rev'd in part sub nom. Whitman v. Am. Truck-ing Ass'ns, 531 U.S. 457 (2001)
101. South Dakota v. U.S. Dep't of the Interior, 69 F.3d 878, 882, 885 (8th Cir. 1995) (holding that delegation to the Secretary of the Interior to acquire lands "in his discretion" violated the nondelegation doctrine), vacated and remanded, 519 U.S. 919 (1996).
102. see also Indus. Union Dep't v. Am. Petroleum Inst., 448 U.S. 607, 659-62 (1980) (plurality opinion) (requiring the Occupational Safety and Health Administration to make a finding of significant risk in promulgating its safety regulations).
103. William H. Taft, The Attacks on the Courts and Legal Procedure, 5 KY. L.J. 3, 18 (1916) (emphasis added).
104. Jurisdiction of the Circuit Courts of Appeals and United States Supreme Court: Hearing on H.R. 10479 Before the H. Comm. on the Judiciary, 67th Cong. 2 (1922) [hereinafter Hearing on H.R. 10479] (statement of Chief Justice William H. Taft) (emphasis added).
105. See, e.g., Procedure in Federal Courts: Hearing on S. 2060 and S. 2061 Before a Sub-comm. of the S. Comm. on the Judiciary, 68th Cong. 21 (1924) (reporting that "[i]f this bill becomes law, every case now reviewable in the Supreme Court will still be subject to review there, if the court finds that it presents any question which should, in the public interest, engage its attention")
106. Jurisdiction of Circuit Courts of Appeals and of the Supreme Court of the United States: Hearing on H.R. 8206 Before the H. Comm. on the Judiciary, 68th Cong. 7 (1924) [hereinafter Hearing on H.R. 8206] (statement of Justice Willis Van De-vanter) (suggesting that the Court would grant cases that presented questions "of public importance or of wide general interest")
107. Even if the legislative history could be said to supply some kind of a guiding principle, there is also the question of whether legislative history alone can supply the requisite intelligible principle or whether the principle must be tethered to some am-biguous statutory text. See, e.g., Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 38 (D.C. Cir. 2008) (Brown, J., dissenting) ("[E]ven in a nondelegation challenge, a court must find meaning for an ambiguous phrase in some relevant text.").
108. See, e.g., Hiersche v. United States, 503 U.S. 923, 925 (1992) (Stevens, J., res-pecting the denial of certiorari) (defending the Court's denial of certiorari and ar-guing that "[s]ome conflicts are tolerable")
109. Beaulieu v. United States, 497 U.S. 1038, 1039 (1990) (White, J., dissenting) (noting he had dissented from the denial of certi-orari forty-eight times that term because "there were conflicts among Courts of Ap-peals sufficiently crystallized to warrant certiorari" and that he had dissented seven other times where there were "differences on the same federal issue between Courts of Appeals and state courts").
110. see also Aaron Nielson, The Death of the Supreme Court's Certified Question Jurisdiction, 59 CATH. U. L. REV. 483, 487 (2010)
111. (noting that the last time the Court even mentioned certification was more than twelve years earlier in 1996 (citing Felker v. Turpin, 518 U.S. 651, 667 (1996)))
112. See Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 ARIZ. L. REV. 933, 980 (2009) ("The Court will agree to de-cide few 'splitless' or 'factbound' cases unless there are extraordinary circumstances, such as unusual importance to the question or an atypical lower court error.").
113. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) (alteration in origi-nal) (emphasis added)
114. (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928))
115. See Philip J. Harter, Executive Oversight of Rulemaking: The President Is No Stranger, 36 AM. U. L. REV. 557, 568 (1987) ("We vote for presidents, not secretaries or adminis-trators.").
116. See Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Re-view, 119 YALE L.J. 2, 35-37 (2009)
117. see also FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1815 (2009) ("[I]ndependent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presiden-tial oversight (and protection) has simply been replaced by increased subservience to congressional direction.")
118. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2384 (2001) ("Presidential administration . . . advances political accountability by subjecting the bureaucracy to the control mechanism most open to public examina-tion and most responsive to public opinion.").
119. See Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61, 84 (2006) ("One way in which Congress has supervised agencies . . . is through the ap-propriations process. The power of the purse is among Congress's most potent wea-pons in its effort to control the execution of the laws.").
120. Morrison v. Olson, 487 U.S. 654, 670-71 (1988) (dis-cussing the President's appointment and removal powers and noting that principal officers may only be selected by the President with the advice and consent of the Se-nate, but that inferior officers may be appointed by "the President alone, by the heads of departments, or by the Judiciary," in Congress's discretion)
121. See generally Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Reg-ulatory State, 106 COLUM. L. REV. 1260, 1261 (2006) (describing how Reagan "tapped the Office of Management and Budget (OMB) to review agency rulemaking and help streamline the administrative state")
122. Paul R. Verkuil, Jawboning Administrative Agencies: Ex Parte Contacts by the White House, 80 COLUM. L. REV. 943, 944-47 (1980) (discussing the various modes of interaction between the Carter Administration and federal agencies).
123. JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 152 (1997).
124. See U.S. CONST. art. III, §1 ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.").
125. see generally Leonard G. Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. PA. L. REV. 157 (1960)
126. and Lawrence Gene Sager, Foreword: Constitutional Limi-tations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17 (1981).
127. See U.S. CONST. art. I, §8, cl. 1 ("The Congress shall have Power To lay and col-lect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .").
128. See generally Eugenia Froedge Toma, Congressional Influence and the Supreme Court: The Budget as a Signaling Device, 20 J. LEGAL STUD. 131, 132-35 (1991) (discussing Congress's control over the Court's budg-et as a mechanism to signal its satisfaction or dissatisfaction with the Court's decision-making).
129. See generally William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpreta-tion Decisions, 101 YALE L.J. 331, 338 (1991) (providing an empirical analysis showing that Congress overrides the Supreme Court's decisions interpreting statutes on average ten times per Congress).
130. Cf. BARRY FRIEDMAN, THE WILL OF THE PEOPLE 369-72 (2009) (arguing that the Court listens closely to and is in dialogue with the public and political actors).
131. See REGULATIONS.GOV, http://www.regulations.gov (last visited Oct. 15, 2011) (enabling members of the public to search for proposed rules, submit and read com-ments, and locate final rules).
132. See SUP. CT. R. 10 (listing considerations important to the Court in deciding whether to grant certiorari).
133. See William Howard Taft, The Jurisdiction of the Supreme Court Under the Act of February 13, 1925, 35 YALE L.J. 1, 3 (1925) ("The Court has thought it wise to indicate the lines along which its discretion will be exercised in granting certioraris, in Par. 5 of Rule 35 of the new Rules adopted by the Court in June last, to square with the new Act.")
134. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (noting that both case law and the Administrative Procedure Act support the presumption of judicial re-view of agency action).
135. See ICC v. Bhd. of Locomotive Eng'rs, 482 U.S. 270, 280 (1987) (holding an agency denial of a request for reconsideration to be unreviewable)
136. Heckler v. Chaney, 470 U.S. 821, 828-31 (1985) (holding that agency nonenforcement decisions are pre-sumptively nonreviewable).
137. See generally Eric Biber, The Importance of Resource Allocation in Administrative Law, 60 ADMIN. L. REV. 1, 10-13 (2008) (discussing confusion in the law concerning judicial review of agency inaction and resource allocation issues).
138. Cf. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Ap-proach, 79 N.Y.U. L. REV. 1657, 1658-60, 1714-17 (2004) (recognizing that under the current state of the law, agency decisions not to act are subject to political rather than judicial control, but arguing that the law should be altered to allow room for courts to provide a check against arbitrary agency inaction).
139. The Court itself could reconsider a certiorari decision, but such reconsidera-tion rarely occurs. See SUP. CT. R. 44.2 (allowing for petitions for rehearing of orders denying certiorari)
140. see also Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 MINN. L. REV. 689, 765 (1990) (noting that section 555(e) of the APA requires an agency to furnish a written explanation when it denies either a rulemaking petition or a petition for enforcement action).
141. Cf. Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 496 (2003) (describing how failing to demonstrate reasoned decisionmaking can be indicative of arbitrary action).
142. See, e.g., Sidney A. Shapiro & Richard E. Levy, Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions, 1987 DUKE L.J. 387, 423-25 (arguing that the heightened reason-giving requirement articulated in State Farm flows from separation of powers principles and responds to the broad delegations of legislative authority given to agencies)
143. cf. Cynthia R. Farina, Sta-tutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 487 (1989) (noting that "the permissibility of delegating regulatory power" has hinged on the courts' ability to review agency exercises of delegated power).
144. Not all agency action is subject to a judicially enforceable reason-giving require-ment. Nonenforcement decisions, for example, are not subjected to any judicially en- forced reason-giving requirement by virtue of the fact that there is "no law to apply." Heckler v. Chaney, 470 U.S. 821, 828-32 (1984). Such decisions are nonetheless still subject to other checks, such as political oversight, and perhaps to constitutional checks like the nondelegation doctrine.
145. See Sandra B. Zellmer, The Devil, the Details, and the Dawn of the 21st Century Administrative State: Beyond the New Deal, 32 ARIZ. ST. L. J. 941, 989 (2000) (noting that decisions that are committed entirely to an agency's dis-cretion "would seem a prime target for nondelegation challenges"). In addition, the APA helps facilitate political oversight of some nonenforcement decisions by requiring agencies to furnish written explanations when petitions for enforcement are denied. 5 U.S.C. ,555(e) (2006)
146. Cf. Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 634, 637 (1995) (noting that when the Court makes certiorari decisions, "the conclusion stands alone, unsupported by reasons, justifications, or explanations")
147. David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 578 (1985).
148. See, e.g., Martin H. Redish, Absten-tion, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71, 76 (1984) (arguing that judge-made abstention doctrines used in the federalism context "could be characterized as a judicial usurpation of legislative authority, in violation of the prin-ciple of separation of powers").
149. Alternatively, a constitutional amendment might enumerate factors to guide the Court's power of discretionary review. See, e.g., GA. CONST. art. VI, §6, para. 5 ("The Supreme Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.")
150. OHIO CONST. art. IV, §2(B)(2)(e) ("In cases of public or great general interest, the Supreme Court may direct any court of appeals to certify its record to the Supreme Court, and may review and affirm, modify, or re-verse the judgment of the court of appeals."). However, a constitutional amendment not only seems highly unlikely, but also might well be undesirable because it would take valuable flexibility away from Congress.
151. MD. CODE ANN., CTS. & JUD. PROC. §12-203 (LexisNexis 2006).
152. See ROY B. FLEMMING, TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA 5 (2004) (noting that "[t]he 1975 reform gave Canada's Supreme Court wide latitude, declaring that the decision to grant leave to appeal rested on the Court's determination of the 'public importance' of issues raised by an application")
153. (quoting Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1) (Can.)).
154. See, e.g., NBC v. United States, 319 U.S. 190, 225-26 (1943)
155. United States v. Rock Royal Coop., 307 U.S. 533, 574-77 (1939) (upholding a delegation to the Secretary of Agriculture to regulate milk prices in the "public interest").
156. Cf. State v. Tyson, 544 S.E.2d 444, 446 (Ga. 2001) (noting that a Georgia consti-tutional provision giving the Georgia Supreme Court the power to review by certiorari cases in the Court of Appeals which are of "gravity or great public importance" places "no limit" on the court's certiorari jurisdiction).
157. or (4) involve an issue of "substantial public interest that should be deter-mined by the supreme court." N.M. STAT. ANN. §34-5-14 B (1996). The Supreme Court in New Mexico appears to pay attention to these four statutory factors-it has indicated that there are "four grounds" on which the court may grant certiorari.
158. Paule v. Santa Fe Cnty. Bd. of Cnty. Comm'rs, 117 P.3d 240, 246 (2005)
159. see also N.M. R. APP. P. 12-502(C)(2) (requiring petitioners to state the basis for granting certiorari, includ-ing whether any of the four statutory factors are present).
160. HERBERT WECHSLER, PRINCIPLES, POLITICS, AND FUNDAMENTAL LAW 15 (1961).
161. Ashutosh Bhagwat, Separate but Equal?: The Supreme Court, The Lower Federal Courts, and the Nature of the "Judicial Power," 80 B.U. L. REV. 967, 979-80 (2000) (noting that the Court sometimes takes the need for perco-lation into account when deciding whether to grant certiorari).
162. See The Supreme Court, 2009 Term-Leading Cases, 124 HARV. L. REV. 360, 368 (2010) ("Legislatures often pass laws in broad terms to allow flexibility for future devel-opments or to defer details to specialized executive agencies.").
163. See Gerald B. Cope, Jr., Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Florida's System With Those of the Other States and the Federal System, 45 FLA. L. REV. 21, 23 (1993) (noting that the "majority of state appellate court systems consist of two tiers: a court of last resort, usually called the supreme court, and an in-termediate appellate court, usually called the courts of appeals" and explaining that "[o]ne of the hallmarks of a two-tier appellate court system is discretionary supreme court review"). One notable outlier is Florida. In Florida, the state constitution sets forth specific criteria for discretionary review in a fairly restrictive manner.
164. KAN. STAT. ANN. §20-3018(b) (2010).
165. MINN. STAT. §480A.10 (2010).
166. MINN. R. CIV. APP. P. 117 comment (1983).
167. See generally Peter S. Popovich & Erin Leigh Miller, Obtaining Review in the Minnesota Supreme Court, 14 HAMLINE L. REV. 117, 131-32 (1990) (noting that in spite of the enumerated factors, "the granting of review is entirely discretionary").
168. See HAW. REV. STAT. §602-59 (2010) (noting that the "acceptance or rejection of [a petition for review] shall be discretionary upon the supreme court")
169. State v. Bo-losan, 890 P.2d 673, 676 n.5 (Haw. 1995) (noting that the legislative history makes clear that the court's review is discretionary).
170. See Frank D. Moore, Right of Review by Certiorari to the Supreme Court, 17 GEO. L.J. 307, 308 (1929) (suggesting that "the court should assign briefly its reasons for its denial")
171. Maryland v. Balt. Radio Show, 338 U.S. 912, 918 (1950) (Frankfurter, J., res-pecting the denial of certiorari).
172. William H. Rehnquist, Sunshine in the Third Branch, 16 WASHBURN L.J. 559, 561 (1977).
173. See Balt. Radio Show, 338 U.S. at 918 (Frankfurter, J., respecting the denial of certiorari) ("[D]ifferent reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undesirable.").
174. Cf. Thomas E. Baker, Siskel and Ebert at the Supreme Court, 87 MICH. L. REV. 1472, 1494 (1989) ("I believe that the case selection process is, and should be, as much a po-litical process as decisions on the merits.")
175. see also Heckler v. Chaney, 470 U.S. 821, 828-32 (1985) (holding that nonenforcement decisions are generally not judicially reviewable because they are committed to agency discretion).
176. 248See S. REP. NO. 79-752, at 26 (1945) (suggesting that this exception to the APA was meant to apply where "statutes are drawn in such broad terms that in a given case there is no law to apply").
177. see also Singleton v. Comm'r, 439 U.S. 940, 942-43 (1978) (Stevens, J., respecting the denial of certiorari) (approving of Justice Frankfurter's view that "[p]ractical considerations preclude" the Court from explaining its decisions
178. (quoting Maryland v. Balt. Radio Show, 338 U.S. 912, 918 (1950) (Frankfurter, J., respecting the denial of certiorari))).
179. For an analysis of what happened post-Houston and the history sur-rounding a constitutional amendment that requires reasons for judicial opinions, see People v. Kelly, 146 P.3d 547, 550-53 (Cal. 2006).
180. See also CAL. CONST. art. VI, §14 ("Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.").
181. Houston, 13 Cal. at 25.
182. See Vaughan v. Harp, 4 S.W. 751, 752-53 (Ark. 1887) (concluding that the legis-lature has no authority to require the court to give written reasons for its decisions).
183. See In re Griffiths, 20 N.E. 513, 513-14 (Ind. 1889) (holding unconstitutional a statutory provision requiring the Indiana Supreme Court to make a syllabus of each opinion).
184. Unpublished Judicial Decisions: Hearing Before the Subcomm. on Courts, the Internet, and Intellectual Prop. of the H. Comm. on the Judiciary, 107th Cong. 16 (2002) (statement of Judge Alex Kozinski).
185. Cf. United States v. Lopez, 514 U.S. 549, 614 (1995) (Souter, J., dissenting) (suggesting that "an Act of Congress mandating long opinions from this Court" would be "patently unconstitutional").
186. U.S. CONST. art. III, §2 (emphasis added). Interestingly, some state constitu-tions explicitly give the states' highest courts-not the state legislatures-the power to promulgate rules defining the courts' appellate jurisdiction. For example, the Illinois Constitution, adopted in 1970, gives its supreme court the power to provide by court rule for appeals other than appeals as of right specified in the federal or state constitu-tion.
187. ILL. CONST. art. 6, §4(b)-(c).
188. Similarly, the Kentucky Constitution declares that in all but certain specified types of cases, "the Supreme Court shall exercise appellate jurisdiction as provided by its rules." KY. CONST. §110(2)(b)
189. see also IND. CONST. art. 7, §4 ("The Supreme Court shall exercise appellate jurisdiction under such terms and conditions as specified by rules except that appeals from a judgment imposing a sen-tence of death shall be taken directly to the Supreme Court.")
190. MICH. CONST. art. 6, §4 ("The supreme court shall have . . . appellate jurisdiction as provided by rules of the supreme court.")
191. VT. CONST. ch. II, §30 ("The Supreme Court shall exercise appel-late jurisdiction in all cases, criminal and civil, under such terms and conditions as it shall specify in rules not inconsistent with law.").
192. See 5 U.S.C. §555(e) (2006) (requiring that notices of agency denial of applica-tions be accompanied by "a brief statement of the grounds of denial")
193. See MICH. CONST. art. VI, §6 ("Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal.").
194. See Maurice Kelman, Case Selection by the Michigan Supreme Court: The Numerology of Choice, 1992 DETROIT C. L. REV. 1, 7 (describing the Convention's actions to "create[] an intermediate appellate court" and modify "the existing constitutional reference to the supreme court's appellate jurisdiction" (internal quotation marks omitted)).
195. STATE OF MICHIGAN CONSTITUTIONAL CONVENTION 1961 OFFICIAL RECORD 1296 (Austin C. Knapp ed., 1962) (statement of Del. Donnelly).
196. see also, e.g., Morrill v. St. Joseph Cnty. Road Comm., 699 N.W.2d 698, 698 (Mich. 2005) (denying application for leave to appeal "because we are not persuaded that the questions presented should be reviewed by this court"). This is the case despite the existence of a court rule suggesting that reasons will be given.
197. See MICH. CT. R. 7.321 ("The reasons for denying leave to appeal, re-quired by Const 1963, art 6, 6 and filed in the clerk's office, are not to be published, and are not to be regarded as precedent.").
198. MD. CODE ANN., CTS. & JUD. PROC. §12-203 (LexisNexis 2006).
199. E.g., Johnson v. Baker, 562 A.2d 151 (Md. 1989)
200. Smith v. Graymar Co., 468 A.2d 624 (Md. 1983)
201. Taylor v. Benjamin, 468 A.2d 624 (Md. 1983)
202. Moats v. Estate of Pumphrey, 366 A.2d 1047 (Md. 1976)
203. see also William L. Reynolds, II, The Court of Ap-peals of Maryland: Roles, Work and Performance, 37 MD. L. REV. 1, 15 (1977) (noting that the standard wording of an order denying certiorari simply provides in an unrevealing manner that "there has been no showing that review by certiorari is desirable and in the public interest")
204. cf. William J. Murphy & John J. Connolly, Petitions for Certiorari-View From the Bar, in APPELLATE PRACTICE FOR THE MARYLAND LAWYER: STATE AND FEDERAL 351 (Paul Mark Sandler & Andrew D. Levy eds., 3d ed. 2007) (noting that the judges on the Court of Appeals "rarely publish specific reasons why certiorari was either granted or denied in particular cases").
205. See, e.g., SCOTUSBLOG, http://www.scotusblog.com (last visited Oct. 15, 2011) (covering the Supreme Court, often with multiple posts per day).
206. cf. Steve Albert, The Ninth Circuit's Secret Ballot: Some Judges Want to Reconsider the Private Nature of Votes for En Banc Review, RECORDER (S.F.), Mar. 3, 1995, at 1 (noting that some judges in the Ninth Circuit worry that if en banc votes were publicly revealed, "their votes could be misread as reflecting their judgments on the merits of a case").
207. Kevin H. Smith, Certiorari and the Supreme Court Agenda: An Empirical Analysis, 54 OKLA. L. REV. 727, 766 (2001) (find-ing that over half of the cases eliminated through the certiorari process either raised a "frivolous" question, did not have an opinion on the merits from the court immediately below the Supreme Court, or involved a pro se petitioner)
208. Nancy C. Staudt, Agenda Setting in Supreme Court Tax Cases: Lessons from the Blackmun Papers, 52 BUFF. L. REV. 889, 892 (2004) (investigating Justice Blackmun's papers to determine "the factors that ex-plain the Supreme Court's decision to grant certiorari to federal tax controversies").
209. In recent confirmation proceedings, certiorari has surfaced but generally
210. See The Nomination of Elena Ka-gan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 78, 248-50 (2010).
211. Chief Justice John Ro-berts was asked how he would decide "which cases will make the cut and will be heard by the Supreme Court" and what would guide his "complete discretion to choose which cases to hear." Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 336 (2005).
212. Justice Alito was asked whether he would join the cert pool. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 394-95 (2006).
213. See, e.g., Pierre H. Bergeron, En Banc Practice in the Sixth Circuit, 68 TENN. L. REV. 771, 780 (2001) (discussing the statistical improbability of obtaining en banc re-view in the Sixth Circuit).
214. 4TH CIR. R. 35(b).
215. U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT, RULES AND INTERNAL OPERAT-ING PROCEDURES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 34-36 (2011), available at http://www.ca5.uscourts.gov/clerk/docs/ 5thCir-IOP.pdf.
216. U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, ELEVENTH CIRCUIT RULES AND INTERNAL OPERATING PROCEDURES No. 5, at 147 (2011), available at http://www.ca11.uscourts.gov/documents/pdfs/BlueAUG11.pdf.
217. 4TH CIR. R. 35(b).
218. This differs from the en banc rules of some other circuits that allow (but do not require) judges to disclose their en banc votes in certain circumstances. See U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT, HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES 57 (2011), available at http://www.cadc. uscourts.gov/internet/home.nsf/ content/Court+Rules+and+Operating+Procedures (follow "Handbook of Practice and Internal Procedures" hyperlink) ("An order granting rehearing en banc does not indi-cate the names of the judges who voted against rehearing, but an order denying re-hearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish." (emphasis omitted))
219. U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT, INTERNAL OPERATING PROCEDURES OF THE UNITED STATES COURT OF AP-PEALS FOR THE THIRD CIRCUIT ch. 9.5.8, at 13 (2002), available at http:// www.ca3.uscourts.gov/Rules/IOP-Final. pdf ("If there is a dissent from the denial of rehearing and no dissenting opinion is filed, a notation will be added to the dispositive order, at the affirmative request of the dissenting judge, that 'Judge - would grant rehearing by the court en banc.' Any active judge may file an opinion sur denial of the petition and direct its publication."). The Fourth Circuit rule also stands in sharp con-trast to the Ninth Circuit's procedures, which expressly provide that orders denying or granting en banc consideration will not specify the vote tally.
220. ARIZ. R. CIV. APP. P. 23(h).
221. See, e.g., State v. Johnson, No. CR-09-0256-PR, 2010 Ariz. LEXIS 8 (Ariz. Feb. 4, 2010) (denying petition for review and noting that "Chief Justice Berch and Justice Bales voted to grant review on issue 2"), denying review to 207 P.3d 804 (Ariz. Ct. App. 2009)
222. State v. Gum, No. CR-07-0176-PR, 2007 Ariz. LEXIS 114 (Ariz. Sept. 25, 2007) (denying review but noting that "Justice Hurwitz voted to grant review"), denying review to 153 P.3d 418 (Ariz. Ct. App. 2007)
223. Performance Funding, L.L.C. v. Ariz. Pipe Trade Trust Funds, No. CV-02-0240-PR, 2002 Ariz. LEXIS 215 (Ariz. Dec. 4, 2002)
224. See Lawrence Baum, Decisions to Grant and Deny Hearings in the California Supreme Court: Patterns in Court and Individual Behavior, 16 SANTA CLARA L. REV. 713, 716 (1976).
225. California makes the court's meeting minutes available online. Minutes: Su-preme Court and Courts of Appeal, CAL. CTS., http://www.courtinfo.ca.gov/ cgibin/ minutes.cgi (select "Supreme Court" from the dropdown menu) (last visited Oct. 15, 2011).
226. SUPREME COURT OF CAL., THE SUPREME COURT OF CALIFORNIA pt. IV.I (2007), available at http://www.courts.ca.gov/documents/2007-Supreme-Court-Booklet.pdf ("In any case in which the petition, application, or motion is denied, a justice may re-quest that his or her vote be recorded in the court minutes.").
227. See Houston v. Williams, 13 Cal. 24, 26 (1859) (striking down a reason-giving requirement in part because the requirement would needlessly take up the court's time and resources).
228. See Julia Kobick, Negotiated Rulemaking: The Next Step in Regulatory Innovation at the Food and Drug Administration?, 65 FOOD & DRUG L.J. 425, 431 (2010) (noting that notice-and-comment rulemaking can take several years to complete).
229. see also Richard J. Lazarus, Advocacy Matters Before and Within the Su-preme Court: Transforming the Court by Transforming the Bar, 96 GEO. L.J. 1487, 1562-64 (2008) (highlighting the influence of the Supreme Court bar and urging reform from both the bar and the Court)
230. Joseph W. Swanson, Experience Matters: The Rise of a Su-preme Court Bar and Its Effect on Certiorari, 9 J. APP. PRAC. & PROCESS 175, 203 (2007)
231. See generally David C. Thompson & Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certiorari Peti-tion Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16 GEO. MASON L. REV. 237, 242 (2009) (discussing the Court's ability to invite the views of those outside the Court at the certiorari stage).
232. cf. John F. Duffy, The Fed-eral Circuit in the Shadow of the Solicitor General, 78 GEO. WASH. L. REV. 518, 525 (2010) (noting that CVSGs have been used by the Court at the certiorari stage to invite the Solicitor General's views for about a half century now).
233. Cf., e.g., INS v. Chadha, 462 U.S. 919, 929 n.4 (1983) (noting that briefs were filed by the Senate and the House of Representatives in the case but that "[n]ine Members of the House of Representatives disagree with the position taken in the briefs" and hence "filed a brief amici curiae").
234. See SUP. CT. R. 39.3 (providing an exception to Rule 33.2, which allows in forma pauperis filers to file on 8-1/2 by 11-inch paper, except when expressly provided). Electronic filing might also be an option to consider.
235. SUP. CT. R. 37.2(a)
236. see also SUP. CT. R. 37.1 ("An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court.").
237. See Tony Mauro & Marcia Coyle, To Get on the Argument Docket, It Helps to Have Friends, NAT'L L.J. (July 28, 2010), http://www.law.com/jsp/nlj/ PubArticlePrinterFriendlyNLJ.jsp?id=1202463990959&slreturn=1.
238. See, e.g., Eric Biber & Berry Brosi, Officious Intermeddlers or Citizen Experts? Peti-tions and Public Production of Information in Environmental Law, 58 UCLA L. REV. 321, 377-84 (2010) (studying the role that citizen petitions and litigation play in driving the environmental regulatory agenda and concluding that public participation might help improve the performance of environmental agencies by collecting diffuse information about environmental conditions).
239. Cf. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 783 (2000) ("Political scientists have long perceived an analogy between interest groups lobbying legislatures and interest groups seeking to influence judicial decisions through the filing of amicus briefs.").
240. See, e.g., Christa Culver, Petitions to Watch: Conference of September 26, 2011, SCO-TUSBLOG (Sept. 2, 2011, 7:14 PM), http://www.scotusblog.com/2011/ 09/petitions-to-watch-conference-of-september-26-2011-2/.
241. See Transparency and Open Government: Memorandum for the Heads of Ex-ecutive Departments and Agencies, 74 Fed. Reg. 4685, 4685 (Jan. 21, 2009) (explain-ing President Obama's goal of governmental transparency within executive depart-ments and agencies).
242. See Press Release, Supreme Court of the United States (Sept. 28, 2010), available at http://www.supremecourt.gov/publicinfo/press/viewpressreleases. aspx?FileName= pr-09-28-10.html ("Beginning with October Term 2010, the audio recordings of all oral arguments heard by the Supreme Court of the United States will be available free to the public on the Court's Web site, www.supremecourt.gov, at the end of each ar-gument week.").
243. See generally Barbara H. Brandon & Robert D. Carlitz, Online Rulemaking and Other Tools for Strengthening Our Civil Infrastructure, 54 ADMIN. L. REV. 1421, 1465-70 (2002) (discussing agency efforts to obtain public input prior to rule proposals).
244. See, e.g., Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 411, 460 (2005) (finding that comments from the lay public compose the vast majority of total comments on some regulations).
245. United States v. Seale, 130 S. Ct. 12, 13 (2009) (Stevens, J., respecting the deni-al of the certified question).