Supreme Court
Writ of Certiorari
• a/k/a “Granting Cert”
• When 4 of 9 Justices of the Supreme
Court, the Court issues a writ (order) to
the lower court, and the documents are
sent to the Supreme Court.
• The Supreme Court does not retry a case.
They simply hear the legal arguments.
• The Court receives 7000-8000 cert
petitions each year, only hears about 150
cases.
Oral Argument
• The attorneys representing each
side have 30 minutes to present the
case to the Court. This includes
taking questions from the Justices.
• After the Court hears the case, the
Justices discuss it in Conference
and take a preliminary vote.
• Opinion of the Court: The majority
opinion, the legally binding
decision
Supreme Court Opinions
• Concurring opinion: One or more
Justices agrees with the result of
the case, but not necessarily the
legal reasoning (would decide it the
same way on different legal
grounds)
• Dissenting opinion: One or more
Justices disagrees with the Court’s
opinion and expresses that
disagreement.
Opinion Assignment
• One of the Justices in the majority
is assigned to write the opinion of
the Court.
• If the Chief Justice is in the
majority, he assigns the opinion.
• If the Chief Justice is in the
minority, the senior Associate
Justice in the majority assigns the
opinion.
Opinion Assignment
• Legal reasoning in the opinion determines
scope and breadth of decision.
• A narrowly-written opinion focuses more on
the specific circumstances of the case at
hand. It will have less impact on existing
law than a broadly-written one.
• A broadly-written opinion may determine
that all situations similar to those in this
case must be treated identically (e.g., all
laws in a category are unconstitutional)
Judicial Philosophy
• What’s the proper role of the
judiciary in society?
• Originalism, restraint, strict
construction
– Usually (not always) associated with
political conservatism
• “Living Constitution,” activism,
loose construction
– Usually (not always) associated with
political liberalism
Interpreting the Law
• Strict construction vs. loose
construction
• Strict: The law is to be interpreted
literally as written.
• Originalism: Theory that a judge
should try to understand and follow
the Founders’ intent as closely as
possible when interpreting the
Constitution.
Interpreting the Law
• Loose construction: The law should
be read metaphorically, rather than
literally. Rights are not confined to
those explicitly stated in the
Constitution.
• “Living Constitution”: Theory that
the Constitution’s meaning and
interpretation changes over time as
society’s values change
– “Cruel and unusual punishment”
Judicial Activism vs.
Judicial Restraint
Judicial restraint: Less willingness to
overturn decisions of elected branches of
government.
Theory: Laws should be made by those who
are elected by the people and
accountable to them. The courts
shouldn’t overturn majority opinion
except in extraordinary cases. Laws are
the product of majority opinion, and
your rights aren’t violated just because
the majority prevents you from doing
something you want to do, or makes you
do something you don’t.