Procedure and Opinion Making
in the Supreme Court
GOVT 2305
This is a brief section designed to
provide an overview of the process
that cases take on their way to the
Supreme Court.
The goal here is for you take have
some familiarity with how cases make
their ways to the Supreme Court and
what happens to them once they are
there.
Here are some documents that
explain the process:
US Courts: Supreme Court Procedures.
ScotusBlog: Supreme Court Procedure.
Wikpedia: Procedures of the Supreme
Court.
LII: Rules of the SCOTUS.
Supreme Court Database
Supreme Court Statistics
If you are very ambitious you might
want to chew on this:
RULES OF THE
Supreme Court of the
United States
As with bill making and rule
making, the courts are responsible
for making their own procedures.
And these have changed over the
course of time.
We’ll look at these simple stages in the
process – based on this description
from ScotusBlog:
Lower Courts
Petition for Certiorari
Merits Stages
Oral Arguments
Decision
Lower Courts
The process begins – always – with
a case at the lower courts.
(Well, this isn’t really true since the Supreme
Court can hear some cases as a matter of
original jurisdiction. These are very rare
however. We wont worry about them here.)
Cases can arise as a result of civil or
criminal matters in a lower court. That
court can be civil or criminal, state or
federal. They can emerge from anywhere
in the nation. Some recent major cases has
come from the local area. Examples:
Santa Fe Independent School Dist. v. Doe
Atwater v. Lago Vista
Santa Fe Independent School Dist.
v. Doe
The 2000 Supreme Court ruled that
student-led, student-initiated prayer at
high school football games violates the
Establishment Clause of the First
Amendment. This amounts to an
endorsement of one religious point of view
by government – this case the independent
school district.
"Regardless of the listener's
support for, or objection to, the
message, an objective Santa Fe
High School student will
unquestionably perceive the
inevitable pregame prayer as
stamped with her school's seal of
approval."
The lawsuits was initiated by: “two sets of
current or former students and their respective
mothers—one Mormon, the other Catholic—
objected to this practice and filed a suit on the
basis of a violation of the Establishment Clause.
Judge Samuel B. Kent of the United States
District Court for the Southern District of
Texas allowed the plaintiffs to remain
anonymous to protect them from harassment.
They are referred to as the Does.
Interesting trivia: Samuel Kent
would later resign from office on
threat of impeachment and
removal due a conviction for lying
about sexually abusing female
employees.
Atwater v. Lago Vista
This 2001 decision “held that a person's
Fourth Amendment rights are not violated
when the subject is arrested for driving
without a seatbelt. The court ruled that
such an arrest for a misdemeanor that is
punishable only by a fine does not
constitute an unreasonable seizure under
the Fourth Amendment.”
Cases can also emerge from the
actions of either the legislative or
executive branches.
They can sue each other. If this
occurs the lawsuits are filed with
the United States Court of Appeals
for the District of Columbia Circuit.
As a reminder, here is the map of the
federal courts.
The cases that come from, and are
decided in, each area can vary. The
decisions made on the west coast – for
example – can be different than the
ones that emerge from the south. Part
of what the court is supposed to do is
reconcile these differences.
If you look closely, you’ll see the doted
lines which outline the trial courts. These
are the courts of original jurisdiction where
the civil or criminal case are heard.
Federal cases from this area would start in
the US District Court for the Southern
District of Texas. Here’s the map:
Here’s the website for the
Southern District of Texas. Click
here for notable cases from the
court.
Brazoria County is in the Galveston
Division of the court.
Cases that start in the state courts can
also end up being appealed to the
United States Supreme Court if it can
be proved that state officials violated a
federally guaranteed right.
That’s what was argued in Atwater v.
Lago Vista
All cases have to begin with a
decision in a trial court (civil or
criminal) or a question from that
court about the admissibility of
evidence.
It can also be either deliberately
intended to challenge the
constitutionality a law (a test case)
or the product of a procedural
question related to an issue that
arises in the court.
We discussed test cases previously.
Often interest groups use these cases in
order to change legislation – sometimes by
asking the court to find it unconstitutional they are otherwise unable to. The Supreme
Court can sometimes play a subtle role in
doing so by “signaling” in some of its
decisions that it is ready to make a certain
decision.
This can encourage groups – like the NAACP for
example – that the court might be ready to
overturn legal segregation, as it did in Brown v
Board of Education.
In that case, the NAACP recruited AfricanAmerican parents to attempt to enroll in racially
segregated schools in Topeka, Kansas knowing
that they would not be allowed in. That was the
point. They sued based on a violation of the
equal protection clause, the case made it to the
Supreme Court and they won.
Some cases arise because events
on the ground – like an arrest –
present novel issues that court has
never considered before.
Here’s a recent example: Riley v.
California.
The court ruled unanimously that “The police generally
may not, without a warrant, search digital information
on a cellphone seized from an individual who has been
arrested.”
This case began its journey to the Supreme Court when
the San Diego police searched the cell phone of David
Leon Riley after an arrest, without a warrant. Evidence
of gang activity connected to a different crime was
found and used against him. Police are generally able to
conduct such searches after arrests, but the court ruled
that cell phones are different due to the wealth of
information it contains. Warrants are required in order
to limit searches.
This was not initiated as a test
case, but it became one because it
presented the court with an
important question related to
constitutional rights.
This tells us something about what
cases make it to the Supreme Court.
Generally they are ones that present important
constitutional questions to the court – questions
that often arise because morays change
(attitudes about race relations, the role of
women in society, and the propriety of same sex
relationships) and technology allows for
searches to occur that previously could not.
For more: Types of Cases the Court
Hears.
Tens of thousands of potential cases start
the process to the court each year, but the
Supreme Court hears very few. In recent
years as few as 75 per year.
Here’s an NYT article discussing the fact
that the court chooses to hear fewer and
fewer cases each year: The Case of the
Plummeting Supreme Court Docket.
At some point the lower courts make a decision,
and whatever side looses is in a position to ask
for a review of the decision – not because they
disagree with it, but because there was some
procedural error in the decision.
This could mean – among other things - that
evidence was obtained in violation of the 4th
Amendment, or the law a person was convicted
if violating is in violation of the Constitution.
Petition for Certiorari
Cases from a lower court can be appealed by the
losing party. This is not based on a request that
the case be reheard simply because they lost,
but based on the argument that a procedural
error occurred at the lower level.
Specifically they request that a court issue a Writ
of Certiorari. This is a writ where a higher court
asks a lower court to send it the trial and
appellate records so the court can search for
errors.
The first step for federal cases is for an
appeal to be made to the appropriate
Circuit Court of Appeals. Each court is
staffed with a numbers of judges that
are available to hear the appeals.
Here’s the map again. Note the
numbers:
Texas is in the 5th Circuit Court of
Appeals along with Louisiana and
Mississippi. It’s headquartered in
New Orleans. Not surprisingly it is
considered to be one of the most
conservative courts in the nation.
Click here for it’s website.
Click here for oral arguments from
th
the 5 Circuit.
And here for the 5th Circuit’s
opinion page.
Here’s a map of the appellate
courts in Texas.
These are the courts where
appeals to the decisions of state
courts are made.
In the federal courts cases are
assigned to a panel of three randomly
picked judges who then hear the
appeals made by lawyers on either
side of the case.
No new evidence is considered, only
arguments related to the process in
the trial.
Whichever side looses the ruling of the
3 judge panel can petition for the case
to be reheard by all the judges of the
circuit court – a rehearing en banc – or
petition the Supreme Court. Again,
asking the court to issue a Writ of
Certiorari. This is done by filing a
petition for certiorari within 90 days of
the decision.
The petition allows the plaintiff the
opportunity to convince the court that they
should hear the case.
The petition is received by the circuit
justice, which is the member of the
Supreme Court with jurisdiction over a
specific circuit. All cases from that circuit
are reviewed by that Justice. Click for detail
on circuit allotments of Supreme Court
Justices. And here for a map.
The 5th Circuit
Court of Appeals
is allotted to
Antonin Scalia.
The side that won in the circuit court of
appeals ruling can file a brief in opposition.
While this is occurring, outside groups can
submit briefs arguing why the court should
or should not hear the case. After
reviewing the case, the Justices can add to
the list of cases they intend to talk about in
their next conference.
Much of the work done in reviewing
the cases is done by law clerks.
From USCourts.gov: “Each Justice is permitted to have between
three and four law clerks per Court term. These are individuals
who, fairly recently, graduated from law school, typically, at the
top of their class from the best schools. Often, they have served
a year or more as a law clerk for a federal judge. Among other
things, they do legal research that assists Justices in deciding
what cases to accept; help to prepare questions that the Justice
may ask during oral arguments; and assist with the drafting of
opinions.
Some members of the Supreme
Court once served as a law clerk on
the court for a previous justice.
Click here for a complete list.
If four justices choose to hear a
case in the conference, the case it
is placed on the court’s calendar.
This process is referred to as The
Rule of Four.
Merits Stages
If the case is denied, then the ruling of
the Circuit Court prevails.
If it is accepted, it is placed on the
orders list and the parties to the case
are required to file new sets of briefs.
They are now required to state why
they should win the case.
If you won at the lower level, its
generally bad news if the Supreme
Court agrees to hear your case.
More often than not the case will
be overturned.
The petitioner – the party that initiates
the process – sends a legal brief. This is
called the petitioners brief. They have
45 days to do so once certiorari has
been granted.
The respondent – the party that won
at the lower level – can also if it
chooses. It doesn’t have to. This is
called the reply brief.
The court also considers amicus
briefs – friend of the court briefs –
sent in by parties not involved in
the specific case, but interested in
the outcome.
To get an idea of the range of groups
that submit amicus briefs – as well as
all other aspects of the process in
actuality – click here for Scotusblog’s
page on Burwell v. Hobby Lobby
Stores.
This is an area where interest groups
can have influence on a court’s
decision.
Sometimes the U.S. Government may
see an interest in one side of the case
and may submit an amicus brief. The
U.S. Solicitor General is responsible for
preparing and submitting the brief.
They can also argue part of the case if
they wish. This sets the stage for oral
arguments.
Oral Arguments
This process can occur at any point in
the year.
When the court convenes on the first
Monday in October they begin to set a
schedule for hearing arguments in the
cases they have already agreed to
hear. They generally hear cases
through the following April.
The court usually grants one hour for
arguments, with 30 minutes for each
side.
The Chief Justice controls clock. Chief
Justice Rehnquist held to a strict 30
minute schedule, the current Chief
Justice Roberts tends to allow the
argument to continue until it comes to
a conclusion.
Sometimes the time can be divided
among different people – including
the Solicitor General.
Oral arguments can be pretty open ended.
The Justices can be actively involved in
questioning the attorneys. These tend to
be recorded, so they can be heard after the
fact. The court has never allowed its
arguments to be video taped.
Click here for the Supreme Court
page with audio of the arguments
made available.
Click here for the audio of the
court’s argument in Citizens United
v the FEC.
Transcripts of the oral arguments
are also made available quickly
after the argument is over.
Click here to get them.
After oral arguments are held,
conferences are held internally
which result in votes where the
justices line up for and against the
petitioner.
Decision
After the argument is over, the Justices
meet privately to vote on each case.
Often the decision about who won and
lost is known immediately.
What takes time is the writing of the
decision. Sometimes votes can change
during that process.
The senior justice in the majority
decides who will write the majority
decision.
This assumes there is a majority
decision. Sometimes there may be a
majority on one side, but for different
reasons, so there is no one opinion
with at least 5 Justices signing on to it.
This is called a plurality opinion.
If there is a majority decision, then the
court is in a position to impact
constitutional interpretation. This is
especially true if the court issues a
unanimous decision.
Brown v Board of Education was a
unanimous decision. It was able to
overturn the “separate but equal
doctrine” authoritatively.
A plurality opinion can provide a
winner, but without a clear
understanding why that is the case.
These decisions explain why a vote
was made, but cannot change
precedence, or reinterpret
constitutional language.
Some Justices write concurring
opinions.
These are written by Justice’s that agree
with the direction of a vote – whether the
petitioner should win or lose – but
disagree as to why. Or they might sign onto
the majority decision but may have their
own reason for doing so. This allows them
to lay that out.
Those in the minority can write
dissenting opinions.
These explain why the majority was in
error, and provides the opportunity for
those in the minority to introduce
ideas that can potentially grow in
strength and influence future
decisions.
Example: Justice Harlan’s dissent in
Plessy v Ferguson would provide the
basis for the majority decision in
Brown v Board.
Oliver Wendell Holmes’ dissent in
Abrams v the US set the stage for the
expansion of free speech over the
course of the 20th Century.
Congressional and Executive
Response
It’s generally held that the Supreme Court has
the last word on the meaning of the law and the
Constitution.
This is what it means to say that the role of the
court is to interpret the law. But the other two
branches – the political branches – have
opportunities to respond to decisions they
disagree with. I want to conclude with a brief
look at some of the ways each institution can
respond to Supreme Court decisions they
disagree with.
Changing the law.
If Congress disagrees with how the
court interpreted a law (something
it has previously passed) it can
rewrite the law to account for the
interpretation.
Example: The Lilly Ledbetter Fair
Pay Act of 2009.
In 2007, the Supreme Court ruled in
Ledbetter v. Goodyear Tire & Rubber
Co. that a lawsuit against an employer
accused of engaging in gender pay
discrimination was invalid because it
was not filed in time.
Congress simply extended the time
limit, which negated future such
decisions.
But this can be difficult to do in all
cases, especially if Congress is
divided. Democrats and
Republicans often disagree with
what court decisions should be
addressed and which should be
allowed to stand.
Changing the bureaucratic rule
If the court rules against the use of
executive power, the rule can be
amended in order to comply with
the decision.
Appointments to the Courts
As explained elsewhere, the principle way that
the executive (with some checks by the
legislature) can influence the courts is through
the power of appointment. This is more likely to
happen when voting decisions by the electorate
help one party dominate the political branches
for a long enough period of time to tip the
ideological balance in their favor.
Sometimes this occurs because voters are
mobilized because of Supreme Court cases.
One example:
From the NYT: Appeals Courts
Pushed to Right by Bush Choices.