First of all, thanks to Eugene for letting me guest post this week. If you'd like to learn more about The Origins of Supreme Court Question Selection, please check out the full essay.
The story I've told this week suggests the Court's practice of preselecting questions for review presumes a power that neither Congress nor the common law provided. Instead, the justices took the power for themselves, despite promising Congress they would not do so. How then can the practice be defended?
Probably the best argument is that it helps the Court do its job. Even if we set aside the larger conversation about what the Court's job is or should be, this is a functionalist argument. The problem is that the justices, especially the conservatives on the Roberts Court, don't really go for functionalist arguments when the text and history are clear. Consider a couple of examples:
