The Lottery Docket
Daniel Epps* & William Ortman**
We propose supplementing the Supreme Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court’s free hand in agenda setting has obvious benefits, but it has drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit courts that their decisions are unreviewable—and thus unaccountable—in unimportant cases. And it passes over many cases that are important in a less narrow sense. The Court uses the existence of a circuit split to identify cases as important, but splits are merely proxies for, not measures of, importance. While many issues selected through the certiorari process are important, not all important issues are selected by certiorari. More fundamentally, we question the premise that only “important” cases deserve the Court’s attention. The legal system would be improved if every Term, the Supreme Court were forced to decide some unquestionably unimportant cases—run-of-the-mill appeals dealing with the kinds of legal questions that the lower courts resolve every day. Over the long run, a lottery docket would offset the pathologies of the certiorari system without depriving the Court of its ability to resolve questions that have divided the lower courts.
*Associate Professor of Law, Washington University in St. Louis
** Assistant Professor of Law, Wayne State University. For helpful conversations and comments, we are grateful to Scott Baker, Will Baude, Sean Bayern, Michael Coenen, Benji Cover, Adrienne Davis, Daniel Deacon, Danielle D’Onfro, Paul Dubinsky, Tara Leigh Grove, Andy Hessick, Randy Kozel, Orin Kerr, Shay Lavie, Richard Lazarus, Chris Lund, Nelson Lund, Joe Miller, Jonathan Nash, Teddy Rave, Richard Re, Ian Samuel, Fred Smith, Christian Turner, Adam Zimmerman, the editors of the Michigan Law Review, and participants in the Southeastern Junior-Senior Workshop held at UNC School of Law, the Junior Federal Courts Scholars Workshop held at Emory School of Law, and a faculty workshop at Saint Louis University School of Law.