Supreme Court of the United States

X

How Cases Come Before the Court

For much of the Supreme Court’s history, Congress required it to hear a large percentage of cases appealed from the lower courts. But over the years Congress eliminated parts of this mandatory jurisdiction, granting the Court more discretion to control its own calendar of cases. In 1988 Congress abolished almost all mandatory jurisdiction so that today only a tiny fraction of cases now must be heard on appeal. The Court otherwise has complete discretion to control the nature and number of the cases it reviews by means of the writ (order) of certiorari. The word certiorari comes from Latin and means “to be informed.” The writ of certiorari is an order from a higher court directing a lower court to send the record of a case for review. The Court has long considered requests for writs of certiorari according to the rule of four, which says that if four justices decide to “grant cert,” in the usual colloquial phrase, the Court will agree to hear the case. Of the 6,000 or so certiorari (cert) petitions filed each year, the Court agrees to consider no more than about 150 and sometimes fewer.

A petition for a writ of certiorari is a written document, generally filed by lawyers for the parties (though many prisoners without lawyers write their own petitions). The party wishing to have the case heard is known as the petitioner, and the side that won the case in the lower court is known as the respondent. People seeking review of mandatory appeals are known as appellants, and their opponents are appellees. In almost all cases, Supreme Court review may be sought only after the possibility of all other appeals in the lower courts has been exhausted. Some cases come to the Court because two or more lower federal courts have issued conflicting rulings on the same issue.

The justices have the right to sort through the cert petitions individually, but since the 1970s most of the justices have belonged to the cert pool. In the cert pool, the justices’ law clerks gather to sort through the petitions, and each case is assigned to a clerk who summarizes the facts, analyzes the legal issues, and makes a recommendation to the Court. This provides the justices with a quick way of deciding whether the case is certworthy—whether it should be considered further by the full Court. The chief justice maintains a discuss list, which includes all the cases he thinks are worth considering at the justices’ Friday conference. Any justice may add a case to the discuss list, but if a case is not put on the list, it is automatically refused a hearing by the Court. Relatively little time is devoted to discussing whether most of the petitions should be heard.

XI

Criteria for Selecting Cases

The Supreme Court tries to avoid deciding cases whenever it can. This reluctance, which is called judicial self-restraint, stems partly from the crushing volume of work facing the Court but also from a need to maintain stability in the American legal system. Each Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. The Court tries to use this enormous power only when a case presents a pressing constitutional issue.

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The Court relies on several criteria to decide if a case requires action. To win Supreme Court review, a case must fall within the Court’s jurisdiction, raise a justiciable legal issue, and concern an issue of constitutional or legal importance. Most cases do not meet these criteria, so the Court refuses to grant certiorari. A denial of a writ of certiorari means that the case is over, and the decision in the lower court stands as final. A denial of certiorari is not a judgment of the Supreme Court, so it is incorrect to say that the Court agreed with the lower court. Denials of writs of certiorari have no value as precedents.

The most fundamental question is whether a case falls within the Court’s jurisdiction. The Court can only hear cases that are mandated by Congress or the Constitution. The Constitution does not give the Supreme Court the power, for example, to hear cases that involve interpreting a state constitution, unless the cases raise the question of conflict with the United States Constitution.

If a case does fall within the court’s jurisdiction, it must also be justiciable, meaning it raises questions that are appropriate for the Court to answer. Under Article III of the Constitution, the Court may hear only “Cases and Controversies.” The Court regards several types of disputes as outside this responsibility. It does not issue advisory opinions—statements of legal interpretation about potential cases. The Court issues opinions only in cases formally brought before it through the legal system. The Court also hears only cases that pass the ripeness test—those that present an actual and substantial threat to individual rights or other constitutional provisions. In 1947, for example, the Court decided in United Public Workers v. Mitchell, that a group of federal workers could not block enforcement of a law that created only the possibility of a threat to their First Amendment rights. Similarly, a case must meet the mootness standard—presenting a current problem that has yet to be resolved. Ruling in DeFunis v. Odegaard in 1974, for example, the Court held that a student could not challenge allegedly discriminatory law school admissions procedures after he had already been admitted to the law school and was about to graduate.

The Supreme Court also requires that a party bringing a case have standing—a strong vested interest in the issues raised in the case and in its outcome. In most instances, for example, a taxpayer cannot sue the government for unwise spending, unless he or she can show a direct injury resulting from the spending. The Court also refuses to hear cases known as political questions, although it often considers cases that affect the political system. The precise definition of a political question is less clear than other Court justiciability doctrines, but analysis of the issue usually focuses on whether a question is best left to the discretion of another branch of government. The Supreme Court does not, for example, hear most cases challenging the president’s foreign policy decisions. Similarly, the Court rarely considers cases involving the military’s rules and regulations, preferring to leave these questions to the armed forces. The political question doctrine does not, however, prevent the Court from issuing rulings on thorny political issues such as how to draw congressional districts.

XII

Briefing and Oral Argument

When the Supreme Court agrees to hear a case, the parties’ lawyers submit briefs before oral argument. A brief includes a written statement of the facts of the case, a discussion of the law and precedents, and an argument that shows how the law should be interpreted in the party’s favor. In 1980 the Court established a rule that limits briefs to 50 pages. The justices read the briefs and the record of the case from the lower court quite thoroughly. Justices and advocates over the years have said that many cases are won or lost on the strength of the briefs. In addition to the parties’ briefs, the Court occasionally permits individuals and groups with an interest in the case to file an amicus curiae, or friend-of-the-court, brief. An amicus brief allows parties not directly involved in the case to offer their views about the issues at stake and the likely impact of a decision. The United States and state governments may file amicus briefs in particular cases without requesting permission. In important cases, dozens of such briefs may be filed.

After briefs are submitted, the justices set a date for oral argument. In private cases, a lawyer represents each party. The Court appoints a lawyer to present appeals on behalf of individuals too poor to pay their own expenses. The solicitor general, the third-ranking official in the Department of Justice, presents the government’s position in cases involving the federal government. States have their own rules for determining who will appear when they are parties to Supreme Court appeals.

In the early years of the Court, oral argument in a single case could go on for days, and the leading orators of the time would draw crowds to hear them debate. Today the process is strictly regulated. In all but the rarest cases, each side has exactly 30 minutes to present oral arguments to the justices. Typically, the advocate begins to state his or her position, only to be interrupted by questions from the justices that last through the allotted time. At the end of 30 minutes a red light at the lawyer’s lectern turns on, and the lawyer is told to stop, sometimes even in midsentence. The oral arguments can be decisive. It is the only opportunity to give direct answers to pointed questions. Charles Fried, a former solicitor general, has written that “a successful oral argument is more like a compelling conversation than a lecture.”

All nine justices sit to hear the oral arguments. The Supreme Court does not sit in smaller panels, except in cases of illness or when a justice recuses (disqualifies) himself or herself from participating, perhaps because of a relationship with one of the lawyers or because of some personal interest in the case. At least six justices must be present to hear oral arguments. The public may attend all oral arguments, which are held in the main courtroom on the first floor. Since 1955 oral arguments have been officially taped, and in recent years they have been made available for listening and purchase by the public. Obtaining the audiotapes can be a time-consuming process, however. The Court bars all other tape recorders, cameras, and other recording devices, so journalists covering the Court must rely on official transcripts and on artists’ sketches of the proceedings.

XIII

Analysis and Discussion

Every Wednesday and Friday during weeks when the Supreme Court hears oral arguments, the justices gather in conference to discuss cases they have heard. No one else is allowed in the room. If a messenger comes to the door, the junior justice goes to the door to receive the message. After a round of handshakes, the justices take assigned seats around a large conference table, and the chief justice begins the discussion by stating the facts of each case and presenting his conclusion. The justices in order of seniority then present their views and the chief justice declares the Court’s tentative vote. It is not a meeting for extended argument among the justices, but merely to sound out the Court’s likely decision.

XIV

Writing Opinions

Once the Court reaches a tentative decision, there remains the important task of writing an explanation of the legal reasoning behind the ruling. This document, known as the majority opinion, establishes the law on the issue in question, so justices take considerable care in drafting them. If the chief justice sides with the majority of justices in voting on a particular case, the chief justice can then assume responsibility for the task of writing the Court’s majority opinion, or assign the task to another of the justices in the majority. If one or more justices disagree with the Court’s decision, they may write a dissenting opinion that explains their views of the case and the law. If the chief justice sides with the dissenting minority, then the most senior justice in the majority writes the majority opinion or assigns the task to another of the justices in the majority.

The justices often ask their clerks to prepare the first drafts of their opinions. This practice, Chief Justice William Rehnquist wrote, “may undoubtedly and with some reason cause raised eyebrows in the legal profession and outside of it.” But as Rehnquist explained, the “law clerk is not off on a frolic of his own, but is instead engaged in a highly structured task which has been largely mapped out for him by the conference discussion and my suggestions to him.” Few drafts escape heavy editing and revisions by the justices.

Justices may take weeks or even months to complete their opinions, and votes may change during this period. The justices circulate drafts of the opinions and sometimes write memos to explain their views. Dissenting justices sometimes decide to go along with the majority, and justices initially in the majority may decide to support the dissenting view. In some cases enough justices change their votes that an opinion that began as the Court’s majority opinion becomes a dissenting opinion. Because the justices can and often do change their votes right up until the moment the decision is publicly announced, there is often a considerable amount of discussion and negotiation to shape the direction, tone, and analysis of the Court’s opinion.

Although there is often a single majority opinion and a single dissenting opinion, each justice can write his or her own opinion on either side of the case. Separate opinions that support the majority decision are called concurring opinions and are published along with the majority opinion and any dissents. Only the majority opinion carries the force of law, but dissenting opinions sometimes signal possible new directions in the Court’s thinking on an issue.

When the opinions become final, the justices announce their decisions in open court. The opinions are then published in a variety of places. The Court records its official decisions in the United States Reports, a periodical published after each Supreme Court term. The United States Reports are often delayed by months or even years, so decisions are also published unofficially by private publishing houses. The most widely known of these publications are Supreme Court Reporter and United States Supreme Court Reports, Lawyers’ Edition. Decisions appear the next day in U.S. Law Week, a pamphlet series. They are also available in the two major electronic commercial legal databases, Lexis and Westlaw, and on many World Wide Web sites.