“Absolute and Arbitrary”: How the Supreme Court’s Certiorari Power Violates the Nondelegation Doctrine

Authors

Dinis Cheian

Abstract

The Exceptions Clause of Article III of the Constitution is clear that “Congress” “shall make” the rules prescribing the Court’s “appellate jurisdiction.” And so Congress did for almost 150 years. But in the twentieth century, Congress delegated its power to the Supreme Court in the form of—as Chief Justice Taft demanded—”absolute and arbitrary” discretion to pick its appellate cases. Today, under the resulting certiorari regime, the Court enjoys that unbridled discretion in selecting its cases.

Because Congress delegated its power to the Court without articulating “an intelligible principle,” certiorari jurisdiction violates the nondelegation doctrine and is unconstitutional. This Article is the first to advance this bold and novel claim. In addition to its constitutional argument, the Article sets forth a roadmap for litigants to challenge the certiorari process.

This Article first provides an overview of numerous facets of the doctrine as it has developed to demonstrate that, whatever the mode of analysis, the doctrine applies regardless of the branch to which Congress is delegating. It then examines the Exceptions Clause, which reserves exclusively to Congress the power to regulate the Supreme Court’s appellate jurisdiction. Because Congress has this power, it has a duty to articulate an intelligible principle in delegating away that power—yet it plainly did not.

In addition to calling attention to an important, continuing constitutional violation, this Article also aims to add to the current field of scholarship, which focuses on delegations to the Executive Branch. This Article aims to reinvigorate the discussion surrounding the nondelegation doctrine, including the discussion of delegations among other branches—in both directions.

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Dinis Cheian, “Absolute and Arbitrary”: How the Supreme Court’s Certiorari Power Violates the Nondelegation Doctrine, 50 BYU L. Rev. 963 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss4/7