The Decision to Grant or Deny Certiorari: Further Consideration of Cue Theory

Abstract

Political scientists now agree that the Supreme Court is a major institutional policy maker in the American political system. But they have done little to relate that conclusion to democratic theory. Nor have they bothered to draw the implications for structural reform of the Court that seem to flow from such a relationship. Specifically, we have been less concerned with holding Supreme Court justices accountable to those they govern than seeing to it that legislators and executives provide acceptable policies. Such a discrepancy becomes increasingly diffiult to justify as we dilute the traditional role distinctions between judicial and other policy making institutions of government. Generally speaking, accountability is promoted through two devices. The first is access to the policy maker—i.e., the opportunity to be heard, to express oneself, to communicate one's preferences effectively to those whose policy actions are directly relevant. If these preferences are not sufficiently heeded, then we reserve the right to replace the incumbent with one who will provide greater satisfaction in that regard. For executives and legislators, free expression and frequent elections are appropriate means to insure accountability. But since Supreme Court justices are appointed for life (formally “good behavior,” but in fact for life), access to Court review becomes crucial.

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