During her confirmation hearings, soon-to-be Justice Amy Coney Barret conveyed the impression that Supreme Court justices do not control the issues that come before them. This impression is only very slightly true and is mostly false.
The Constitution does limit court to deciding cases and controversies. A judge does not get to wake up in the morning and say that today I am going to look at absentee voting rules in Texas. Instead, the judge must have some party bring that case. But, there are two ways that judges, especially Supreme Court justices, can influence what cases are brought to them.
First, the United States Supreme Court is mostly a discretionary court. In other words, the Supreme Court gets to choose what cases they take. If four justices want to look at Second Amendment issues, the Supreme Court will take a Second Amendment case. The justices, for the most part, understand that there are certain circumstances where they should take a case. Thus, you have a lot of cases involving issues of federal statutes on which the lower courts have split. But, for the most part, it is up to the justices how many abortion or civil rights or Fourth Amendment or Free Speech cases they take.
Second, in deciding cases, the justices issue opinions. Sometimes, a justice may issue an opinion in a case that the Supreme Court declines to take (categorized by the Supreme Court as “opinions related to orders”). Either in the main merits opinion (or in a concurring opinion or a dissent) or in an opinion related to an order, a justice can identify an issue worthy of further consideration while explaining why that issue is not being addressed at the present time. For example, last year, the Supreme Court decided a case on the Second Amendment on procedural grounds. However, some of the opinions noted that there were significant issues on the substance of the Second Amendment raised by that case that the Supreme Court should address in the near future. If you are an attorney in a case with significant Second Amendment system, those comments are an invitation to file for Supreme Court review.
The bottom line is that appellate judges can send signals to parties about what issues might get favorable consideration if properly raised in a future case. And judges on discretionary courts like the Supreme Court get to choose which cases they hear. So while a justice can’t wake up in the morning and decide that today I want to invalidate the Affordable Care Act, a justice can certainly arrange things so that they get an opportunity to invalidate the Affordable Care Act in the next several years. There are lots of reasons for progressives to oppose putting justices like Justice Alito or Justice Thomas on the Supreme Court. But contrary to the spin that Republicans are trying to put out on the current nomination, activitst Supreme Court justices can reach out to get the cases that they want to hear on the issues that they want to hear.
