THE CLAIM OF ISSUE CREATION ON THE US SUPREME-COURT

We argue that a variant of the sua sponte doctrine, namely, the practi ce disfavoring the creation of issues not raised in the legal record, is a norm with substantial consequences for the U.S. Supreme Court. Wi thout it, justices would act considerably more like legislators, who a re free to engage in ''issue creation,'' and less like jurists, who mu st wait for issues to come to them. Yet, McGuire and Palmer claim that justices engage in issue creation in a ''significant minority'' of th eir cases. We dispute this finding because we think it is an artifact of the way McGuire and Palmer collected their data. Indeed, for virtua lly every case in which they found evidence of issue creation, we show that the issue was actually present in at least one of the litigants' briefs. This suggests that justices may be policy seekers, but they a re not policy entrepreneurs; and that briefs filed by third parties (s uch as amici curiae) are generally not a source of important issues co nsidered by the Court.