Issue Fluidity on the U.S. Supreme Court

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Abstract
In making decisions on the merits, the members of the U.S. Supreme Court are often willing to provide authoritative answers to questions that have not been asked and to disregard issues that the parties have presented. What accounts for these forms of issue fluidity? Analyzing data from the 1988 term of the Court, we find that issue transformation is quite common, occurring in roughly half of the cases on the plenary agenda. We propose models of both issue discovery and issue suppression that, while successful in explaining how the justices select issues, suggest that these two forms of fluidity result from largely different influences.