Case selection and dissent in courts of last resort

The jurisdictional basis of appellate court cases can be divided into mandatory and discretionary components. Whether jurisdiction is mandatory or discretionary is significantly associated with courts’ patterns of affirmance and reversal. For example, the US Supreme Court, with almost wholly discretionary jurisdiction, reverses about 70 percent of the cases it agrees to hear, whereas US federal Courts of Appeal, with largely mandatory jurisdiction, reverse about 20 to 30 percent of the cases they review. ² Even within the same court, jurisdictional source is significantly associated with reversal patterns. US state supreme courts and the Israel Supreme Court (ISC) hear both discretionary and mandatory appeals, and show higher reversal rates in discretionary appeals than in mandatory appeals. ³ The higher discretionary case reversal rate is likely associated with judges’ authority to select their docket and a tendency to select for review cases with which they disagree. The associations among jurisdictional source, case selection, and case outcome can confound basic findings about judicial behavior. It is increasingly recognized that models of judicial behavior may be unreliable if they do not account for discretionary case selection. ⁴