With judicial reform a matter of intense public debate, it is essential that one understand the political consequences that may result from the adoption of various reform measures. Moreover, it is important to recognize that an evaluation of any proposed change must proceed from one's conception of the role of the Supreme Court in our society and one's perception of the foundations of its legitimacy. Similar considerations also must shape one's analysis of the rule of four and the Court's practice of dismissing certiorari as improvidently granted. While discretionary review increasingly has politicized a large portion of the Court's work, a political decision to grant review should be treated with the respect due an institutional determination of the Court. Before proceeding to reverse itself by dismissing certiorari, the Court should articulate reasons for its ultimate refusal to hear a case. In this way, a common law of precedent will evolve that would limit this form of dismissal; since other techniques for avoiding adjudication on the merits, such as the abstention doctrine, have an intellectual content of their own, so should writ dismissals. In deference to the principle of minority control of the screening process, however, certiorari should not be dismissed as improvidently granted if four of nine or three of seven Justices dissent.
James F. Blumstein,
The Supreme Court's Jurisdiction--Reform Proposals, Discretionary Review, and Writ Dismissals,
26 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol26/iss5/1