Page:EO 14023 Commission Final Report.pdf/274

  Excerpts from Written Statement of Richard Lazarus, Harvard Law School 

https://www.whitehouse.gov/wp-content/uploads/2021/08/Professor-Richard-Lazarus.pdf



The Distinct Importance of the Court’s Jurisdictional Determination

… The Court’s decision at the jurisdictional stage that a particular case warrants plenary review is … one of the most consequential rulings that the Court makes. Yet, as the number of petitions has significantly increased over time, the Court’s resources to identify which cases warrant full briefing and argument have necessarily been stretched increasingly thin and, as a result, increasingly susceptible to be unduly influenced by expert members of the Supreme Court Bar.

I have no comparable concern relating to the Court’s decision-making process for those cases granted plenary review. Especially now that the Court decides only sixty to eighty cases a year, the Justices and their chambers have ample time to immerse themselves fully into those cases and potentially make up for any possible deficits in the advocacy in any specific case. Advocacy deficits are also effectively addressed in most cases that the Court has decided to review with full briefing and oral argument by the sheer number of amicus briefs filed these days in those merits cases, many of which are crafted by outstanding lawyers on all sides of a case. My concern is instead limited to the jurisdictional stage, where mismatches in the advocacy skills of the competing parties favoring and opposing review are likely to be present and the Court lacks the time and resources to make up for the difference. It is at the jurisdictional stage, not the merits stage, that the Court is most vulnerable.

The Deficiencies in the Court’s Current Internal Processes at the Jurisdictional Stage

The Court currently considers between five and six thousand petitions each year and, as described above, grants review in about sixty to eighty cases. Although the Justices themselves plainly commit significant time to deciding—based on full briefing and the merits, oral argument, and circulation of draft opinions—those cases in which review is granted, it is an open secret that the individual Justices spend relatively little time reviewing individual petitions at the jurisdictional stage. To be sure, the Justices are the ones who formally vote on the question whether review is warranted but given the thousands of petitions to be considered and all of their other responsibilities, especially deciding the cases granted review, the Justices themselves spend no time at all on the vast majority of cert petitions and only minutes even