More than 80 years ago, the Court decided it didn’t need to settle whole cases, but could limit its review to specific questions it liked.
One must feel for the fishermen of Cape May, New Jersey. They had a fair grievance and took it to court—all the way to the Supreme Court. But along that journey their lawsuit became something else: a way to possibly remake administrative law. They just want to make a living catching herring, but the justices are more interested in using their case to weigh in on a different legal question entirely.
This is the story of Loper Bright Enterprises v. Raimondo, one of the blockbuster cases on the Court’s docket this year. The case involves a federal law requiring fishermen to “carry” government inspectors as observers on their fishing boats in order to monitor compliance with a federal agency’s rules. That regulator—the National Marine Fisheries Service—recently interpreted carry to mean “pay for” and began charging fishermen roughly 20 percent of their revenue to pay the monitors’ wages. A group of fisheries sued but lost in the D.C. Circuit, which said that because of what’s known as the Chevron doctrine, the court was obligated to defer to agencies’ “reasonable” interpretations of “ambiguous” statutes.
So, the fishing companies took their case to the Supreme Court, and their lawyers (from the conservative Cause of Action Institute) put two questions in front of the justices. First, they asked if the D.C. Circuit applied Chevron correctly. The fishermen think that the statute is not ambiguous and that the agency’s interpretation is not reasonable. If the Supreme Court were to agree, the fishermen would not have to keep paying the monitors. The second question the fishermen’s lawyers asked was much more provocative: Is it time for the Court to overturn Chevron—or, at least, rewrite it to avoid outcomes like this?
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The justices took the case, but only in part: The Court will hear only the second question. The fishermen will have their day, but they can’t bring one of their best arguments with them. Now the only way the fishermen can win is if the Supreme Court overturns a 40-year-old precedent; whether the fishermen are right about the ambiguity of the statute or the reasonableness of the agency’s interpretation is no longer part of the case.
That the Court will decide Loper Bright without considering the first question may seem odd, but it’s unfortunately all too common. The Supreme Court almost never decides entire cases. Justices pick the questions they want to decide, and this time, they decided they wanted to reconsider a pillar of administrative law that has stood since the Reagan administration. But picking the law you want to change and then changing it sounds a lot like a job for Congress, not a court.
No wonder many Americans today worry that the Supreme Court plays too large a role in setting national policy. In the past decade, the Court has decided cases dealing with abortion, President Barack Obama’s DAPA program, and same-sex marriage without actually considering the full cases. Instead, the Court picked the questions from those cases that it wanted to answer—the policy it wanted to make—and focused on those. This self-assigned power to choose its questions rather than judging entire cases is perhaps the most important part of the story of how the Court became such a powerful policy maker. It is certainly the most overlooked.
At its inception, the Supreme Court had almost no control over its docket. Like virtually all common-law appellate courts before it, the Court heard all cases because it was required to do so and decided them in their entirety. It was explicit that its duty was “to give judgment on the whole record”—no cherry-picking of questions.
By 1891, the Court was hopelessly behind on its work, so Congress stepped in. It created the Circuit Courts of Appeals—lower federal courts that handle initial appeals from federal trial courts—and limited the Supreme Court’s mandatory docket. But this limitation created a new problem. What if the new circuit courts disagreed? Or what if they misinterpreted the law in cases that the Court was no longer obligated to hear?
Congress provided a solution. Ordinarily, the new circuit courts get the final word, but there are two exceptions where the Supreme Court gets to speak: First, circuit courts can “certify”—that is, send—specific questions to the Supreme Court. The justices may either answer the question or bring the whole case up for the justices to decide in full. Second, if the circuit court does not certify a question, the Supreme Court could grant certiorari and decide the entire case itself. This distinction between discrete questions emerging through certification and full cases coming before the Court through certiorari has been explicit since 1891 and remains enshrined in statutes today.
By 1925, the Court was once again falling behind. The justices went to Congress and asked for even more control over their docket. Congress obliged and made more of the Court’s docket discretionary. Still, as before, both Congress and the Court tied certification to individual questions and certiorari to entire cases. Chief Justice William Howard Taft said certiorari extended “to the whole case and every question presented in it.” Justice Willis Van Devanter assured Congress that he and his peers understood that granting writ meant “full consideration of the case.”
But two years later, the justices went back on their word. In a case called Olmstead v. United States, the Court granted certiorari and expressly limited its review to constitutional questions, ignoring other issues involved in the case. Over time, this practice became more and more common, and in 1939, the Court wrote its own rule giving itself power to limit its review to specific questions in all cases.
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Today, this little-known rule has major consequences. In cases dealing with abortion (Dobbs v. Jackson Women’s Health), marriage equality (Hollingsworth v. Perry, United States v. Windsor, and Obergefell), President Obama’s DAPA program (United States v. Texas), class actions (Wal-Mart Stores, Inc. v. Dukes), the appointments clause (National Labor Relations Board v. Noel Canning), campaign finance (Citizens United), and the recognition of Jerusalem (M.B.Z. ex rel. Zivotofsky v. Clinton), the Court preselected its questions. The justices eliminated questions they didn’t want to answer and added some they did. But they never actually did what courts are supposed to do: sit down and decide a full case.
Even when the justices don’t add or subtract questions, the Court’s choose-your-own-adventure approach to its docket invites activist lawyers to bring up questions that allow the justices to make new laws. In many cases, when the Court isn’t actively manipulating the docket, all that means is that the lawyers guessed right about what the justices wanted to talk about. But if they guess wrong, the justices can and often do fix things. As in Loper Bright, the Court is typically primarily interested in legislating, and the case itself is barely an afterthought.
According to both text and history, the Supreme Court should be deciding full cases, but that’s not what the Court does today. Despite the Roberts Court’s stated emphasis on the original public meaning of law, the justices seem comfortable abandoning text and history when it comes to the statutes that govern the Court’s own behaviors.
Holding others to a standard the justices don’t apply to themselves is galling, but targeting questions creates another big problem. It transforms the Court from a tribunal deciding cases into a super-legislator with little accountability. Unsurprisingly, this legislative power divides and politicizes the Court. It also devalues the flesh-and-blood people whose very livelihoods depend on the Court’s decisions.
Many litigants swear to take their case all the way to the Supreme Court. Cape May’s fishermen got one question there, but not their whole case. If the Court decides to leave Chevron as is, they can make no further appeal, even though perhaps their strongest argument—the argument that carry cannot be reasonably interpreted as “pay for”—was never considered by the Court. I wouldn’t blame these fishermen for asking whether the Supreme Court is even a court at all. Courts are supposed to decide full cases after hearing all the arguments. That’s what the law says the Supreme Court is supposed to do, but that’s not what the Supreme Court does. It hasn’t for a long time.
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