Thomas P. Schmidt (Columbia University – Law School) has posted Agenda Control and Precedent (72 UCLA Law Review (forthcoming 2025)) on SSRN. Here is the abstract:
The Supreme Court now has almost complete control over its agenda: It has the power not only to pick and choose what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court will never revisit a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For that reason, the Court's powers of agenda control play a significant and underappreciated role in maintaining the continuity of the legal order. Indeed, it is no surprise that the formal doctrine of stare decisis seems to operate as such a weak constraint in the Supreme Court when it only comes into play after the Court has already made the discretionary decision–as a matter of agenda control–to put a precedent in jeopardy.
This Essay describes two functions that agenda control can serve in order to maintain continuity in the law as an alternative or complement to the formal doctrine of stare decisis. First, certiorari and agenda control function as safety valves, enabling the Court to preserve precedents that are both inconsistent with the justices' view of the law but too entrenched to abandon. Second, certiorari functions as a decelerator, permitting the Court to moderate the pace of legal change after a change in membership. The Essay closes by considering some normative responses to Court's relatively unbounded control over its agenda, including the possibility of internal principles to guide the Court's discretion, judicial role morality as a limit, and congressional docket reform. It concludes by proposing a change to the certiorari process: Five votes, rather than the typical four, should be required to grant certiorari in a case presenting the question whether a precedent should be overturned. This change would more closely align certiorari practice with the rule-of-law values underlying stare decisis.
Highly recommended.