The Modern Supreme Court:
How it Works
How Does a Case Reach the Supreme Court?
• Criteria For Any Case
1) Must be an actual dispute (No
hypotheticals)
2) The Party bringing the case must have
standing
3) The Court remedy must impact
something (Mootness)
How Does a Case Reach the Supreme Court?
• The Rule of 4
– The Court gets to pick and choose which cases it will hear.
– If 4 judges agree they will hear a case that case is granted a
writ of certiorari (writ of cert). Less than 5% of all appeals
are heard by the Supreme Court.
• What type of cases does the court take?
– A lower level court makes a decision that conflicts with
previous Supreme Court rulings
– A Constitutional question is raised that has not been
examined by the Court before
– Differing District Court rulings on similar issues
– Departure from previous procedures in lower courts.
Procedure of the Court
• Once the Court Decides to hear a case…
– Brief Filing
• The parties file written briefs outlining their legal argument
for the proposed remedy
• During this time interested 3rd parties can file briefs known
as Amicus Curiae (“Friends of the Court”) with their
arguments.
– Oral Arguments
• 30 minutes given to each side to present their legal
argument. (Time can be extended in controversial or
extraordinary cases)
• Judges can interrupt to ask questions of the lawyers
• All arguments since 1955 have been recorded (oyez.org)
The Decision Making Process
• Conference
– The judges meet, alone without any clerks, and
discuss the case.
– The judges from junior most to senior give their
opinion and the basis on which they would decide
the case.
– Once the preliminary vote is tallied the opinion
writing is assigned by the senior most judge on
the majority side (can give the opinion to
themselves)
Opinion Writing
• The justice charged with writing the opinion
circulates a draft among the others
• Justices may suggest changes or simply join the
opinion
• At this point Justices might HAVE changed their
mind about the issue and can change their vote
• The opinion includes the facts of the case,
relevant case law from previous cases, the
decision reached, and the legal argument why
that decision was made.
Types of Opinions
Majority Opinion
This is the official decision reached by the court. This decision
is recognized as binding and guides future cases.
Concurrent Decision
A decision that agrees with the majority decision but for a
different legal reason.
Dissenting (Minority) Opinion
A decision that disagrees with the majority’s finding. Includes
legal reasons why the justices felt that way. Written to
provide future courts will legal reasons to overturn previous
decisions.
Categories of Opinions
• Policy Making Decisions vs. Norm Enforcing
– Norm Enforcing (95% of all decisions): Most
Supreme Court decisions enforce the lower court’s
rulings. Referred to as Stare Decisis (Let the
decision stand)
– Policy Making: Rulings that change the previous
legal thinking on an issue and force the
government to adopt a new policy.
Judicial Philosophies
• Liberal vs. Conservative
– Liberal Judicial Philosophy: Tends to hold group rights (civil
rights) and equality over liberty.
– Conservative Judicial Philosophy: Tends to hold individual
rights (right to property, speech) and liberty over group
rights and equality.
• Activist vs. Constructionist
– Activist Judges: Believe that the Constitution can be
interpreted for meaning and applied to modern day
society.
– Constructionist Judges: Believe in a literal reading of the
Constitution. No meaning can be inferred and you must
use the words as they appear in the Constitution.
Evaluating Modern Supreme Courts
• Because the terms of Supreme Court Justice
are lifetime terms we use the names of the
Chief Justices to classify the different courts
over history.
Evaluating Modern Supreme Courts
•
The Warren Court (1953-1969)
– Highlights the independence of the court
• Earl Warren was a Conservative Attorney General and Governor of
California.
• Was appointed by a Republican, Dwight Eisenhower.
• Once he was seated on the Court he became one of the most liberal
justices in the history of the court
– Key Cases
• Brown v. Board of Education (1954): Desegregation
• Mapp v. Ohio (1961): Exclusionary Rule
• Gideon v. Wainwright (1963): Right to a lawyer
• Miranda v. Arizona (1966): Miranda Rights.
– Fundamentals: Liberal Activist
• Civil Rights and Liberties
• Rights of the Accused
• Political and Legal Equality
Evaluating Modern Supreme Courts
• The Burger Court (1969-1986)
– Warren Burger appointed by Richard Nixon the be
the “Conservative Warren.”
– Key Cases
• Roe v. Wade (1973): Abortion Rights allowed
– Fundamentals: Moderate Activist
• Privacy Rights
• Property Rights
Evaluating Modern Supreme Courts
• The Rehnquist Court (1986-2005)
– William Rehnquist fulfilled the idea
of having a Conservative Activist Chief
Justice for Ronald Reagan
– Key Cases
• US. v. Lopez (1995): Limited the commerce clause
• Texas v. Johnson (1989): Protected flag burning
• Bush v. Gore (2000): Stopped the recount
– Fundamentals: Conservative Activist/Constructionist
• Limiting Government Power
• Level of Activism depended on issue.
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Key Cases
Citizens United v. Federal Election Commission (2010)
– Overturned Federal law which banned political spending from corporations, unions.
– Allowed them to spend unlimited amounts of money on independent expenditures to
support candidates.
Arizona v. United States (2012)
– Struck down aspects of the Arizona Immigration law due to the state not having
jurisdiction.
• Requiring legal immigrants to always have ID on them
• Allowing state police to arrest any individual on suspicion of being an illegal
immigrant
• Making it a crime for an illegal immigrant to search for and hold for a job.
National Federation of Independent Business v. Sebelius (2012)
– Made most aspects of the Affordable Care Act (Obamacare) legal.
– The Liberal justices said it was constitutional due to commerce clause.
– Judge Roberts ruled it was constitutional because it falls under the power to tax