The Claim of Issue Creation on the U.S. Supreme Court

Published in 1996. American Political Science Review 90 (4): 845-852.

Lee Epstein
Jeffrey A. Segal
Timothy Johnson

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 (1995) 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 McGuire and Palmer 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.

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