This Essay, drawn from remarks offered as part of a symposium on the Supreme Court, discusses the many complaints about the Supreme Court’s current certiorari practices and one recent proposal that would alter those practices. Professors Paul Carrington and Roger Cramton, like Judge Posner, believe that the Court has transformed itself into something akin to a “‘superlegislature.’” To address this problem, as well as their belief that the Court has “forsaken the humble task[s] of correcting errors of lower courts” and resolving conflicts that have divided them, Carrington and Cramton propose creating a certiorari division of appellate judges to choose cases for the Court. The proposal shares some qualities with the much-debated and ultimately unsuccessful proposal by the Freund Committee to create a national court of appeals that would sit between the circuits and the Supreme Court.
Part I of this Essay reviews the debate over the Supreme Court’s role in our judicial system and its case selection methods. Part II describes the certiorari division proposal put forth by Professors Carrington and Cramton, noting some of its shortcomings while highlighting its important contribution to this debate. In particular, the Essay highlights that a major attribute of the Carrington-Cramton proposal is that it seeks to involve in the case selection process the very judges who increasingly have called for greater guidance from the Court on questions that divide them. I agree with Professors Carrington and Cramton that these judges “are in the best position to know what issues of national law are most in need of authoritative attention.” Significantly, there is already a procedural tool in place by which lower federal court judges may participate formally in composing the Court’s docket: certification. Thus, in Part III, the Essay suggests that the certification of issues by lower federal courts to the Supreme Court, a practice that dates back almost as far as the federal courts themselves but one that is now largely a “dead letter,” deserves a good dusting off.
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