Alex Klein Publishes Article in the University of Illinois Law Review The article examines the process through which the U.S. Supreme Court selects cases for review, urging the Court to adopt a more transparent approach.

By Law Communications
March 30, 2026

Washington and Lee law professor Alex Klein, along with Michael L. Smith of the University of Oklahoma College of Law, has published an article in the University of Illinois Law Review. In the article, titled “Certiorari Transparency,” Professors Klein and Smith discuss the process the U.S. Supreme Court uses to select cases for review, set against the backdrop of increasing controversy over the Court’s decisions and calls for extensive reform. In the place of such remedies as jurisdiction stripping or court expansion, the authors “propose a more subtle reform to the Court’s proceedings: the Court should make its certiorari determinations, in which it decides which cases to take up and review, public.

“The potential benefits of such a simple reform are myriad. Publicizing Justices’ votes on certiorari determinations puts these decisions in the public eye—subjecting Justices to critiques for inconsistency and poor judgment where relevant. Publicizing the Court’s certiorari memos may reveal what the Court (or certain Justices) prioritize in determining whether a case is cert-worthy—revealing information about institutional priorities and providing valuable information to advocates who wish their dispute to be one of the increasingly minuscule number of cases on the Court’s merits docket each year. More fundamentally, increased transparency in the Court’s case selection process provides much needed insight into the Court’s motivations and exercise of discretion in shaping its docket—information that may bolster other reform proposals. Certiorari transparency opens the Court’s extensive discretion in case selection to public scrutiny and critique. It is likely to appeal to those on both the right and left, and unlike other reforms (like adding Justices or jurisdiction-stripping), it is not tied to any political party or policy outcomes. Additionally, the Court itself may implement this proposal, making it more feasible than alternatives that would require the passage of legislation or constitutional amendments,” write the authors.

The full article is available online at the W&L Law Scholarly Commons.

Alex Klein teaches and writes in the fields of capital punishment, criminal law, and criminal procedure. Her recent scholarship has examined the legal test that the U.S. Supreme Court has developed to determine whether a state’s chosen method of execution violates the Eighth Amendment, as well as how recent state laws permitting the death penalty conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause.

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