The claim of issue creation on the U.S. supreme court

Lee Epstein, Jeffrey A. Segal, Timothy Johnson

Research output: Contribution to journalReview articlepeer-review

37 Scopus citations

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; and that briefs filed by third parties (such as amici curiae) are generally not a source of important issues considered by the Court.

Original languageEnglish (US)
Pages (from-to)845-852
Number of pages8
JournalAmerican Political Science Review
Volume90
Issue number4
DOIs
StatePublished - Dec 1996

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