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The Claim of Issue Creation on the U.S. Supreme Court

Published online by Cambridge University Press:  01 August 2014

Lee Epstein ,
Jeffrey A. Segal  and
Timothy Johnson
Lee Epstein
Affiliation:
Washington University
Jeffrey A. Segal
Affiliation:
State University of New York, Stony Brook
Timothy Johnson
Affiliation:
Washington University
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Abstract

We argue that a variant of the sua sponte doctrine, namely, the practice disfavoring the creation of issues not raised in the legal record, is a norm with substantial consequences for the U.S. Supreme Court. Without it, justices would act considerably more like legislators, who are free to engage in “issue creation,” and less like jurists, who must wait for issues to come to them. Yet, McGuire and Palmer claim that justices engage in issue creation in a “significant minority” of their cases. We dispute this finding because we think it is an artifact of the way McGuire and Palmer collected their data. Indeed, for virtually every case in which they found evidence of issue creation, we show that the issue was actually present in at least one of the litigants' briefs. This suggests that justices may be policy seekers, but they are not policy entrepreneurs; an that briefs filed by third parties (such as amici curiae) are generally not a source of important issues considered by the Court.

Type
Forum
Information
American Political Science Review , Volume 90 , Issue 4 , December 1996 , pp. 845 - 852
Copyright
Copyright © American Political Science Association 1996

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