Foreward: Certiorari—Necessary, but Legitimate?

Tara Leigh Grove*

One of the Supreme Court’s most important powers is the authority to select the cases that it hears. The creation and expansion of this certiorari jurisdiction transformed the Court’s role from one of dispute resolution to law declaration. There seems to be little doubt that this reform—or at least some kind of reform—was necessary to enable the Court to continue to function beginning in the late nineteenth and early twentieth centuries. The Court lacked the capacity to review all of the many thousands (today, many hundreds of thousands) of federal law disputes in the lower federal and state courts. But even if this certiorari scheme was necessary, is it legitimate? Scholars have raised powerful questions about whether the Court’s certiorari power, and accompanying law declaration function, can be reconciled with Article III. This Foreword explores such questions, arguing that it is crucial to expand the focus beyond Article III to Congress’s lawmaking power under Article I. Congress’s decision to create and then expand certiorari, and to facilitate the Court’s law declaration function, may provide democratic legitimacy for the Court’s modern role. But although this congresional imprimatur may help legitimize certiorari, it may also be evidence of a separate (and worrisome) development: the tendency of political actors and society more generally to rely on the federal judiciary to settle constitutional and other important legal questions.

Continue reading in the print edition . . .

© 2025 Tara Leigh Grove. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Vinson & Elkins Chair in Law, University of Texas School of Law. Many thanks, for helpful comments and suggestions on earlier drafts, to Ed Hartnett, Robert Post, Tom Schmidt, and Allen Sumrall, as well as to all those who offered commentary at a Columbia Law School workshop and the Notre Dame Law Review symposium.