Case Selection by Writ of Certiorari in the Supreme Court of the United States (2) Conceptual Divergences and Contemporary Challenges—Where Is the Supreme Court Headed?

The article titled “Case Selection by Writ of Certiorari in the Supreme Court of the United States of America” was published in A.U.B.D. – Legal Forum No. 2/2026 (2) Conceptual Divergences and Contemporary Challenges—Where Is the Supreme Court Headed?”, authored by Associate Professor Gheorghe-Liviu Zidaru, Ph.D., of the Faculty of Law, University of Bucharest.

The author points out that the U.S. Supreme Court has very broad, almost discretionary, authority in selecting the cases it chooses to hear. But what is the philosophy underlying one selection strategy or another?
Those who believe that case law should evolve step by step, incrementally, starting from the specific resolution of concrete cases, tend toward a more generous selection, while those who argue that the Supreme Court should formulate broad, quasi-legislative rules approach petitions for certiorari with reluctance and tend to select fewer cases for review.
The Supreme Court’s tendency to select specific legal issues (rather than necessarily the entire case) raises a number of concerns regarding the compatibility of this procedure with the function of a court, and the steady decline in the number of cases decided on the merits (merits docket) has drawn criticism. At the same time, another docket—sometimes called the “shadow docket” or the “interim docket” (or “emergency docket”)—has taken on a prominent role —while also being heavily criticized—amid the growing polarization of American politics and society, which has led to a tendency to resolve just about everything through the courts—from abortion rights to the constitutionality of the law banning TikTok, to the redrawing of single-member electoral districts, and to the rights of migrants. Against this backdrop, the issuance of unsupported rulings, as well as the Court’s tendency to intervene quite forcefully in the work of lower courts, has sparked significant controversy. In this context, proposals—some more partisan than others—have been put forward to reform the Supreme Court.