Agenda Setting on the Burger Court Paper 2: Certiorari and Appeal on the Burger Court Agenda

Agenda setting of the United States Supreme Court is a matter of continuing interest to judicial scholars. Most studies of agenda setting focus on the Court’s exercise of its certiorari jurisdiction. The assumption is that cases on appeal (as opposed to certiorari) are obligatory, which means that factors affecting the discretionary decisions on certiorari petitions would not be in play. This assumption, that cases on appeal are treated differently than those on certiorari, has not been tested. The purpose of this study is to take some initial steps in a determination of whether, and to what extent, the Court treats cases on appeal and certiorari differently in terms of the review decision, decision on the merits, and whether the Court summarily disposed of the case. The 17 terms of the Burger Court’s appellate docket provide an interesting period of the Court’s caseload for examination. Results show that although there are clear differences in the treatment of the two types of cases, there still may not be sufficient justification for the exclusion of appeals from studies of the Court’s agenda setting.