Maybe next time: Justice Kennedy on how SCOTUS decides to grant cert.

From the WSJ’s Jess Bravin interview with Justice Kennedy:

Of the 9,000 [petitions] we mark about 500 for discussion. From the 500 we discuss, we should take about 100, 120. Lately we’ve been taking only 80. There’s not a lot of emotional or intellectual capital expended arguing over whether we should take the case.  If it’s a really important case and we feel badly that it wasn’t taken, there will be another one [sooner or later] on the same issue.

For more, see Justice Kennedy On Choosing Cases, ‘Empathy,’ And Diversity (WSJ Law Blog). Hat tip to Cynthia Fountaine’s Civil Procedure & Federal Courts Blog post.

And with a hat tip to Eugene Volokh’s post, note this exchange about checking out what blogging law profs have to say after cert has been granted. From Jess Bravin’s Justice Kennedy On Law School, Blogging, And Popular Culture (WSJ Law Blog):

Q: Chief Justice John Roberts, among others, has criticized law reviews for publishing articles on obscure subjects that offer little assistance to the bar and bench. I understand you agree — but have found a substitute.

A: Professors are back in the act with the blogs. Orin Kerr, one of my former clerks, with criminal procedure [and] the internet area, Mike Dorf, Jack Goldsmith. So the professors within 72 hours have a comment on the court opinion, which is helpful, and they are beginning to comment on when the certs are granted. And I like that.

Q: So you’re reading blog posts after cert grants?

A: I have my clerks do it, especially with the ones when we’ve granted cert, to see how they think about what the issues are.

Joe

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