BEYOND DEFENSIVE DENIALS: EVIDENCE FROM THE BLACKMUN FILES OF A BROADER SCOPE OF STRATEGIC CERTIORARI * UDI SOMMER The U.S. Supreme Court sets its own agenda. The consequentiality of this decision and the little institutional constraints involved induce justices to select cases strategically. They exer- cise their gatekeeping capacity with future consequences in mind. Based on original material from the Blackmun Files, this article examines strategic thinking of a broader scope than the type traditionally described in the literature. On top of dispositional outcomes, the strategic behavior analyzed concerns doctrinal output and policy implications. Thus, strategic conduct during certiorari is attached to a broader institutional context that incorporates various goals of individual justices, the collegial game, the other branches, and time. In closing, implications for the constitutional position of the Court are discussed. T he Supreme Court of the United States has a discretionary gatekeeping capacity. The upshots of this prerogative cannot be overestimated. As Justice Brennan put it, the decision on certiorari is “second to none in importance.” Thus, it is likely that justices select cases strategically, that is, while thinking about future implications. For instance, the decision to directly address the scope of the Second Amendment and grant certiorari in District of Columbia v. Heller was at least partly motivated by strate- gic considerations. Strategic behavior in this case was related to the new ideological makeup of the Court following the appointments of Chief Justice Roberts and Associate Justice Alito (Barnes, 2007, inter alia). While the question of strategic certiorari has been analyzed, the main question in this article is in what ways justices’ strategic considerations go beyond the disposi- tional outcome. More specifically, I examine whether judges, to maximize their influ- ence on both policy and doctrine, consider the future opinion in the case and political implications beyond the Court. At the theory level, the argument puts strategic certio- rari in an institutional context that incorporates goals of individual justices, the colle- gial game, the other branches, and time. At the empirical level, the article describes these strategic behaviors and establishes that they are sufficiently frequent to mean- ingfully influence case selection. The argument is based on material from the papers of * I would like to thank the National Science Foundation. Grant number 0648209 was used to fund this research. I am grateful to the staff of the Manuscript Division of the Library of Congress for their assistance in finding my way through the collections. I thank the anonymous reviewers and the editor of the Justice System Journal. I would also thank Julie Novkov, Jeff Segal, Scott Barclay, Victor Asal, and Sally Friedman for their comments. Earlier versions of this article were presented at the Annual Meeting of the American Political Science Association, Boston, MA September 2008, and at the Annual Meeting of the Midwest Political Science Association, Chicago, April 2008. Udi Sommer is an assistant professor in the Department of Political Science at the University of Albany-SUNY (esommer@albany.edu). THE JUSTICE SYSTEM JOURNAL, VOL. 31, NUMBER 3 (2010)