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

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  • Epstein, Lee
  • Segal, Jeffrey A.
  • Johnson, Timothy

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.

Suggested Citation

  • Epstein, Lee & Segal, Jeffrey A. & Johnson, Timothy, 1996. "The Claim of Issue Creation on the U.S. Supreme Court," American Political Science Review, Cambridge University Press, vol. 90(4), pages 845-852, December.
    • Handle: RePEc:cup:apsrev:v:90:y:1996:i:04:p:845-852_20
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    Cited by:

    1. Arthur Dyevre & Nicolas Lampach, 2021. "Issue attention on international courts: Evidence from the European Court of Justice," The Review of International Organizations, Springer, vol. 16(4), pages 793-815, October.
    2. Tom S Clark, 2016. "Scope and precedent: judicial rule-making under uncertainty," Journal of Theoretical Politics, , vol. 28(3), pages 353-384, July.

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