It’s remarkable that the most prolific and most cited legal scholar of the 20th century–Judge Richard A. Posner–has still not been appointed to be a Justice of the US Supreme Court … and probably never will be given his age and his caustic criticisms of the political nature of the High Court. As Judge Posner notes in a recent interview with Noah Charney of The Daily Beast,

Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically … it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time.

prior probability agrees with Judge Posner about the nakedly political nature of the Supreme Court, but not for the reason Posner gives. In essence, Posner is arguing that the Supreme Court is a political court because it gets to choose which cases to decide. But what other method of case selection could the Supreme Court use to allocate the hundreds, if not thousands, of appellate cases presenting federal questions? Also, don’t all courts, even lowly trial courts, get to control their dockets to a large extent through ad hoc application of the well-pled complaint rule, the standing doctrine, and other procedural devices?