GOVT 2302
The Judiciary
Judicial Review, the Evolution of the
Courts and their Current Organization
In this section we look at the
development of the judiciary
(mostly the national judiciary). This
includes a discussion of how the
judiciary was able to obtain the
power of Judicial Review, how the
courts have evolved, and the
current composition of the
Supreme Court.
Appropriate Readings
Federalist #78 (wikipedia)
Marbury v. Madison (wikipedia)
Creating the Federal Judicial System
Judicial Review (wikipedia)
We will begin with an overview of
Federalist 78, Written by Hamilton,
which presents the argument
which became the basis of judicial
review.
Alexander Hamilton
There is nothing in the Constitution
explicitly authorizing the power of
judicial review. During the
Constitutional Convention it was
proposed that a Council of Revision
be established to determine
whether legislation was in keeping
with the Constitution.
But it was determined that the
Council of Revision would likely
become tyrannical. Nothing could
check it.
The issue was unresolved.
Nevertheless, the Supremacy
Clause implied that a power must
exist in order to enforce the
Constitution as being the “supreme
Law of the Land.”
Hamilton details that argument in
Fed 78. Here’s a summary of the
argument.
He begins by emphasizing the
weakness of the Judiciary
“Whoever attentively considers the different
departments of power must perceive, that, in a
Government in which they are separated from
each other, the Judiciary, from the nature of its
functions, will always be the least dangerous to
the political rights of the Constitution; because
it will be least in a capacity to annoy or injure
them. The Executive not only dispenses the
honors, but holds the sword of the community.
The Legislature not only commands the purse,
but prescribes the rules by which the duties and
rights of every citizen are to be regulated.”
“The Judiciary, on the contrary, has no
influence over either the sword or the
purse; no direction either of the strength
or of the wealth of the society; and can
take no active resolution whatever. It may
truly be said to have neither FORCE nor WILL,
but merely judgment; and must ultimately
depend upon the aid of the Executive arm
even for the efficacy of its judgments.”
Notice his use of the terms “will” and
“judgment.”
Is there a clear distinction between the
two? Judgment seems to have a more
narrow meaning than will. To judge
means that one determines whether a
decision exists within the parameters
of Constitutional law, not so with will.
This simple view of the matter suggests several
important consequences. It proves incontestably, that
the Judiciary is beyond comparison the weakest of the
three departments of power; that it can never attack
with success either of the other two; and that all
possible care is requisite to enable it to defend itself
against their attacks. It equally proves, that though
individual oppression may now and then proceed from
the courts of justice, the general liberty of the People
can never be endangered from that quarter: I mean so
long as the Judiciary remains truly distinct from both
the Legislature and the Executive
He then discusses how an
independent judiciary is necessary
in a limited Constitution and how a
power needs to exist to declare
laws contrary to the Constitution
void.
“The complete independence of the Courts of justice is
peculiarly essential in a limited Constitution. By a
limited Constitution, I understand one which contains
certain specified exceptions to the Legislative authority;
such, for instance, as that it shall pass no bills of
attainder, no ex post facto laws, and the like.
Limitations of this kind can be preserved in practice no
other way than through the medium of the Courts of
justice; whose duty it must be to declare all Acts
contrary to the manifest tenor of the Constitution void.
Without this, all the reservations of particular rights or
privileges would amount to nothing.”
He states that this will not make
the Judiciary superior to the other
branches. It only means that the
Constitution is superior to
statutory law.
“Some perplexity respecting the rights of the
Courts to pronounce Legislative acts void,
because contrary to the Constitution, has arisen
from an imagination that the doctrine would
imply a superiority of the Judiciary to the
Legislative power. It is urged that the authority
which can declare the acts of another void, must
necessarily be superior to the one whose acts
may be declared void. As this doctrine is of great
importance in all the American Constitutions, a
brief discussion of the ground on which it rests
cannot be unacceptable.”
“There is no position which depends on clearer
principles, than that every act of a delegated
authority, contrary to the tenor of the
commission under which it is exercised, is void.
No Legislative act, therefore, contrary to the
Constitution, can be valid. To deny this, would
be to affirm, that the deputy is greater than his
principal; that the servant is above his master;
that the Representatives of the People are
superior to the People themselves; that men
acting by virtue of powers, may do not only
what their powers do not authorize, but what
they forbid.”
The judiciary must keep the
legislature in check and have the
power to interpret the laws. The
judiciary is also responsible for the
interpretation of the laws and the
Constitution. This is not stated in
the Constitution.
“If it be said that the Legislative body are themselves
the constitutional judges of their own powers, and that
the construction they put upon them is conclusive
upon the other departments, it may be answered, that
this cannot be the natural presumption, where it is not
to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that
the Constitution could intend to enable the
Representatives of the People to substitute their will to
that of their constituents. It is far more rational to
suppose, that the Courts were designed to be an
intermediate body between the People and the
Legislature, in order, among other things, to keep the
latter within the limits assigned to their authority.”
“The interpretation of the laws is the proper and
peculiar province of the Courts. A Constitution is, in
fact, and must be regarded by the Judges, as a
fundamental law. It therefore belongs to them to
ascertain its meaning, as well as the meaning of any
particular Act proceeding from the Legislative body. If
there should happen to be an irreconcilable variance
between the two, that which has the superior
obligation and validity ought, of course, to be
preferred; or in other words, the Constitution ought to
be preferred to the statute, the intention of the People
to the intention of their agents.”
He states that constitutional law
must trump statutory law because
the Constitution – because it went
through a ratification process – is a
closer reflection of the will of the
people than is statutory law.
“Nor does this conclusion by any means suppose a
superiority of the Judicial to the Legislative power. It
only supposes that the power of the People is superior
to both; and that where the will of the Legislature,
declared in its statutes, stands in opposition to that of
the People, declared in the Constitution, the Judges
ought to be governed by the latter rather than the
former. They ought to regulate their decisions by the
fundamental laws, rather than by those which are not
fundamental.”
“. . . the prior act of a superior ought
to be preferred to the subsequent act
of an inferior and subordinate
authority; and that accordingly,
whenever a particular statute
contravenes the Constitution, it will be
the duty of the Judicial tribunals to
adhere to the latter and disregard the
former.”
Again, in interpreting the
Constitution, judges and justices
must exercise “judgment,” not
“will” in interpreting the law.
“It can be of no weight to say that the Courts, on the
pretence of a repugnancy, may substitute their own
pleasure to the constitutional intentions of the
Legislature. This might as well happen in the case of
two contradictory statutes; or it might as well happen
in every adjudication upon any single statute. The
Courts must declare the sense of the law; and if they
should be disposed to exercise WILL instead of JUDGMENT,
the consequence would equally be the substitution of
their pleasure to that of the Legislative body. The
observation, if it proved anything, would prove that
there ought to be no Judges distinct from that body.”
The judiciary can only perform this
function if it has sufficient power,
and the best way to guarantee this
power is to grant it lifetime
ternure.
“If then the Courts of justice are to be
considered as the bulwarks of a limited
Constitution, against Legislative
encroachments, this consideration will
afford a strong argument for the
permanent tenure of Judicial offices, since
nothing will contribute so much as this to
that independent spirit in the Judges,
which must be essential to the faithful
performance of so arduous a duty.”
“This independence of the Judges is equally
requisite to guard the Constitution and the
rights of individuals, from the effects of those ill
humors, which the arts of designing men, or the
influence of particular conjunctures, sometimes
disseminate among the People themselves, and
which, though they speedily give place to better
information, and more deliberate reflection,
have a tendency, in the mean time, to occasion
dangerous innovations in the Government, and
serious oppressions of the minor party in the
community.”
Notice that he reiterates the
importance of an independent
judiciary, and the need of the
judiciary to maintain the form and
spirit of the Constitution.
In brief, Hamilton argues that a
power of judicial review is
necessary, that the judiciary ought
to have that power, and he
suggests limits on how the power
ought to be exercised.
Now the question is, how is the power
to be claimed by the court?
That is why Marbury v. Madison is
such an important case.
We now turn to, first, the court
case Marbury v Madison (1803)
and, second, the debate over how
the constitution ought to be
interpreted.
(Findlaw)
The story actually begins with the
passage of The Judiciary Act of
1789 which not only created the
first court system (more on that
below) but also gave the Supreme
Court a new power: The ability to
hear cases requesting the grants of
Writs of Mandamus.
Here’s relevant section in the law:
SEC. 13: The Supreme Court . . .
shall have power to issue . . . writs
of mandamus, in cases warranted
by the principles and usages of law,
to any courts appointed, or
persons holding office, under the
authority of the United States.
Definition of A Writ of Mandamus:
A writ or order that is issued from a
court of superior jurisdiction that
commands an inferior tribunal,
corporation, Municipal Corporation, or
individual to perform, or refrain from
performing, a particular act, the
performance or omission of which is
required by law as an obligation.
Jump forward a decade or so to the
defeat (he came in third) of John
Adams in the election of 1800.
After his defeat, the Federalists in
Congress passed the Judiciary Act of
1801 which reorganized the court
system and created new circuit court
positions.
Adams would staff many of these
positions prior to Jefferson’s
inaugural. These became known as
the midnight appointments since
some were done on his last day in
office. Since many of these people
were judges, they were also
referred to as the midnight judges.
These appointments were meant
to limit what Jefferson could
accomplish in office. Jefferson
disapproved. He knew that this
was a way for the Federalist to
continue their influence. If they
controlled the courts they
controlled the law.
the Federalists "retired into the
judiciary as a stronghold“
- Thomas Jefferson
This reminds us of the
consequence of life time tenure in
the judiciary. It provides a check on
the short term preferences of the
political branches.
The most important of the
“midnight appointments” was John
Marshall, the Fourth Chief Justice
of the Supreme Court. His key goal
was to increase the power and
prestige of the court.
John Marshall
Prior to his appointment, the court
went through 3 chief justices in
twelve years. There was little
glamour or power in the position.
"My gift of John Marshall to the
people of the United States was
the proudest act of my life." John
Adams, President
Marshall is often argued to have
been the greatest justice in court
history due to his ability to
increase the power and prestige of
the court.
Attaining judicial review was a
critical step. William Marbury’s
lawsuit gave him the opportunity.
William Marbury’s commission to
be Justice of the Peace was not
delivered back to Marbury before
Adams left office. James Madison
(as secretary of state) would not
deliver the commission, so
Marbury sued to have it delivered
and he could occupy the position.
It was signed and sealed, but not
delivered.
He took his suit to the Supreme
Court based on the power granted
to it in the Judiciary Act of 1789
(text).
The court could now hear requests
for Writs of Mandamus, Marbury
requested that one be issued to
Jefferson.
But here’s the political background:
Jefferson let it be known that he
would not deliver the commission
no matter what the courts decided.
Which put Marshal in a bind.
By either issuing or not issuing the
writ, the court’s weakness would
be obvious.
As a Federalist, Marshall was
interested in expanding, not
contracting, the power of
government.
Marshall could not force Jefferson
to deliver the commission if he
ruled for Marbury. But if he ruled
against Marbury, it would seem
that the court had been
intimidated by Jefferson.
The best option was to declare the
writ of mandamus
unconstitutional. That is to claim
the power of judicial review.
This way the court did not have to
rule on the writ of mandamus.
They declared that there was no
power to issue writs, so the point
was moot.
The power of judicial review was a
far more significant power than the
writ of mandamus.
This was the decision given in the
case of Marbury v. Madison.
1 - Did Marbury have a right to the
commission? Yes
2 - Do the laws of the country give
Marbury a legal remedy? Yes
3 - Is asking the Supreme Court for a
writ of mandamus the correct legal
remedy? No
The third clause claims that the
writ violates the constitution – the
fundamental law.
Section Two Clause Two
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a
State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases
before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to Law and Fact,
with such Exceptions, and under such
Regulations as the Congress shall make.
The Judiciary Act of 1789 allowed
the Supreme Court to act as a
court of original jurisdiction in
issuing writs. This power is not
contained in the Constitution.
The authority, therefore, given to
the supreme court, by the act
establishing the judicial courts of
the United States, to issue writs of
mandamus to public officers,
appears not to be warranted by the
constitution
This established the precedent for
judicial review of congressional
law. State laws had already been
overturned, and the courts had
claimed that such a right existed,
but not it was finally used.
In order to prevent backlash, the
power of judicial review was used
only occasionally early on.
After Marbury, the court did not
overturn a congressional law until
the Dred Scott decision, which
overturned the Missouri
Compromise of 1820.
And led to the Civil War.
For a history of the use of Judicial
Review by the Courts click her:
The United States Supreme. Court
and judicial review of Congress,
1803-2001
Judicial Review creates two major
issues for the court.
1. How should the court interpret
the Constitution?
2. How aggressively should the
court use the power of judicial
review?
Two general ways to interpreting
the Constitution
1 - Strictly
2 - Loosely
(see Theories of Constitutional Interpretation)
Strict (or Narrow) Construction
The interpretation of the
Constitution is limited. Jefferson
and the Democrat – Republicans
favored a strict construction of the
Constitution.
And there a couple ways – at least - to Strictly or Narrowly interpret
constitutional language:
Original Intent
Textualism
Original intent maintains that in
interpreting a text, a court should
determine what the authors of the
text were trying to achieve, and to
give effect to what they intended
the statute to accomplish, the
actual text of the legislation
notwithstanding
This assumes a common meaning
existed at the time of the founding
and that this meaning can be
determined.
Textualism is a formalist theory of
statutory interpretation, holding
that a statute's ordinary meaning
should govern its interpretation, as
opposed to inquiries into nontextual sources such as the
intention of the legislature in
passing the law.
Both see a fixed meaning to the
Constitution. Interpretations of the
Constitution should be bound by
that meaning.
Loose (or Broad) Construction
The Constitution does not have a
fixed meaning, rather, it can be
broadly interpreted to be adjusted
to fit the contemporary needs of
society.
Proponents argues that a
dynamically changing society
needs a Constitution that can
adjust to changing needs.
Two relevant terms
The Living Constitution
The “Penumbra”
The Living Constitution is a
concept in American constitutional
interpretation which claims that
the Constitution has a dynamic
meaning. The idea is associated
with views that contemporaneous
society should be taken into
account when interpreting key
constitutional phrases.
It holds that the Constitution was
written with broad, vague
language in order to allow future
generations to adapt its meaning
as they saw fit to their unique
issues.
Certain rights can be found in the
"penumbras" and "emanations" of
other constitutional protections
Example: The Right to Privacy
It’s supporters argue that the right
can be found in the penumbra
surrounding the 3rd, 4th, 5th and 9th
amendments. Opponents argue
that if the word “privacy” is not
spelled out in the Constitution, it
does not exist.
On the current court Stephen
Breyer is argued to be a strong
supporter of the doctrine of a
living constitution while Antonin
Scalia argues for textualism
Here’s a link to a C-Span video
where Breyer and Scalia debate
their respective theories of
interpretation.
From the Supreme Court Website
The Court and Constitutional
Interpretation
The Second Dispute:
The role of the courts
Should the courts be actively
disposed to overturn legislation
they find problematic, or should
they restrain themselves and defer
to the political branches?
judicial activism
judicial restraint
Judicial Activism: The view that the
Supreme Court justices (and even other
lower-ranking judges as well) can and
should (re)interpret the texts of the
Constitution and the laws in order to serve
the judges' own considered estimates of
the vital needs of contemporary society
when the elected "political" branches of
the Federal government and/or the various
state governments seem to them to be
failing to meet these needs.
Examples
Baker v Carr
Brown v Board of Education
Supporters of each case argue that
the issues involved (unequal
representation in legislatures and
segregation in public school) could
not be changed through
legislatures due to majority rule.
The courts had to actively
intervene in order to protect
minorities.
Some Supreme Court justices have
developed reputations as being not
hesitant about striking down laws,
or making decisions actively.
Activist Judges
Such judges are sometimes
accused of “legislating from the
bench,” which violates the
principle of separated powers.
The question here is whether such
judges are in fact acting beyond
their proper roles, or whether they
are simply making decisions that
are unpopular to their accusers.
The federal courts are supposed to
be able to make unpopular
decisions.
Some readings along these lines:
- Activist Judges: Why are they creating
such a stir?
- Activist judges? What's in a name?
- Disorder In The Court:
Activist Judges Threaten Justice.
- So Who Are the Activists?
Judicial Restraint: The view that the Supreme
Court (and other lesser courts) should not read
the judges' own philosophies or policy
preferences into the constitution and laws and
should whenever reasonably possible construe
the law so as to avoid second guessing the policy
decisions made by other governmental
institutions such as Congress, the President and
state governments within their constitutional
spheres of authority.
A judge exercising restraint is likely
to yield to the decisions made by
the political branches – as long as
they are within the limits of what is
constitutionally acceptable –
despite the fact that they disagree
with the substance of the law.
It is an exercise of judgment, not
will.
An alternative theory:
Judicial Minimalism
While its still early, this is argued to
the viewpoint of Roberts and
Sotomayor.
Judicial minimalism is a judicial approach
guided by three major principles. First,
judges do not simply 'apply the law,’ they
make it. Two, this change is usually a
response to a society that is changing.
Three, in practice this equates to narrow
rulings on the particular set of facts at
hand, not sweeping change
Test Cases
A test case is a political
consequence of the development
of the power of judicial review.
People interested in changing a law
that they cannot affect through the
legislature can challenge whether
it is properly based on the
Constitution.
These can also force the courts to
reconsider how they have
interpreted constitutional language
in the past. Previous precedence
can be overturned.
A classic example:
Brown v. Board
The case was brought forward
deliberately to force the courts to
reconsider its previous ruling in
Plessy v. Ferguson.
Plessy was a failed test case from 1896
that asked the courts to rule that
segregated railroad cars violated “the
equal protection doctrine” in the 14th
Amendment.
The effort failed. The court ruled that
separation into equal facilities did not
violate the spirit of equality.
Almost sixty years later, Brown posed
the same fundamental question, this
time in terms of access to public
schools.
The court overturned its previous
ruling and agreed that separation was
inherently unequal, and overturned
existing state and local laws creating
racially segregated schools.
Again, this points out that the
power of judicial review allows
opponents of a law an additional
opportunity to overturn or change
that law.
The success of the challenge will
be based on the ideological nature
of the court.
Next Topic:
The evolving design and
composition of the courts
The United States court system has
evolved over time due to the
passage of several redesigns of the
court system in one of the many
Judiciary Acts passed over
American history.
It has also changed as a
consequence of the composition of
the courts and who happens to be
Chief Justice at any one moment.
Some links:
The History of the Supreme Court.
History of the Supreme Court of the United
States – Wikipedia.
The Supreme Court Historical Society.
The Federal Judicial Center.
For a good survey of the history of
the Federal courts read: Creating
the Federal Judicial System.
Links to Wikipedia Pages on Judiciary Acts over American
History:
- Judiciary Act of 1789, established the federal judiciary.
- Judiciary Act of 1801, also called the Midnight Judges Act.
- Judiciary Act of 1802, repealed the 1801 Act.
- "Judiciary Act of 1866" may refer to two different laws.
Ch. 210, 14 Stat. 209 (July 23, 1866) is more commonly called the
Judicial Circuits Act
Ch. 288, 14 Stat. 306 (July 27, 1866) provided for the removal of
certain cases from state courts to the federal courts.
- Judiciary Act of 1869, also called the Circuit Judges Act of 1869
- Judiciary Act of 1891, also called the Evarts Act or the Circuit
Courts of Appeals Act.
- Judiciary Act of 1925, also called the Certiorari Act or the
Judges' Bill.
Eras of the Supreme Court
There have been 17 Supreme Court
Chief Justices.
Eras of the court are generally
divide into “courts” based on who
happened to be chief justice at
that time
First, a quick word on what a Chief
Justice is exactly. The Chief Justice’s
responsibilities are mostly
administrative. The office has no
special judicial powers.
The Chief Justice leads the business of the Supreme
Court. He or she presides over oral arguments before
the Court. When the Court renders an opinion, the
Chief Justice—when in the majority—decides who
writes the Court's opinion. Finally, the Chief Justice has
significant agenda-setting power over the Court's
meetings. In the case of an impeachment of a President
of the United States, which has occurred twice, the
Chief Justice presides over the trial in the Senate. In
modern tradition, the Chief Justice also has the
ceremonial duty of administering the oath of office of
the President of the United States. – Wikipedia.
For a quick overview of the history
of the Supreme Court based on the
different times that a specific
person held the job of Chief
Justice, I highly recommend this
page from the Supreme Court
Historical Society’s website.
More detailed information can be
found here: Oyez Project
It separates all courts based on
who served together for a period
of time. And of course, here’s the
relevant wikipedia page.
Some detail on each
John Jay / The Jay Court
September 26, 1789–June 29, 1795
John Rutledge / The Rutledge
Court
July 1, 1795–December 28, 1795
Oliver Ellsworth / The Ellsworth
Court
March 4, 1796–September 30,
1800
John Marshall / The Marshall Court
January 31, 1801–July 6, 1835
Roger B. Taney / The Taney Court
March 15, 1836–October 12, 1864
Salmon P. Chase / The Chase Court
December 6, 1864–May 7, 1873
Morrison Waite / The Waite Court
March 4, 1874–March 23, 1888
Melville Fuller / The Fuller Court
October 8, 1888–July 4, 1910
Edward Douglass White / The
White Court
December 19, 1910–May 19, 1921
William Howard Taft / The Taft
Court
July 11, 1921–February 3, 1930
Charles Evans Hughes / The
Hughes Court
February 24, 1930–June 30, 1941
Harlan Fiske Stone / The Stone
Court
July 3, 1941–April 22, 1946
Fred M. Vinson / The Vinson Court
June 24, 1946–September 8, 1953
Earl Warren / The Warren Court
October 5, 1953–June 23, 1969
Warren E. Burger / The Burger
Court
June 23, 1969–September 26, 1986
William Rehnquist / The Rehnquist
Court
September 26, 1986–September 3,
2005
John G. Roberts / The Roberts
Court
September 29, 2005–present
Each era of the court is influence
by the results of previous
Presidential and Senatorial
elections.
If the electorate votes in a liberal
direction, the courts will – as
positions are made available – shift
in that direction, and vice versa.
Let’s pay special attention to
transition from the Warren to the
Rehnquist court.
Earl Warren, if you recall from the
last set of slides, was one of
Eisenhower’s self described
mistakes. He became Chief Justice
at a moment when the court was
composed of people nominated by
FDR or Truman.
They were primed to begin to
accept arguments developed by
liberals and progressives over
previous decades. Cases involving
segregation, speech and due
process were coming to the court
with greater frequency.
The Warren Court’s decisions
tended to be activist and were
based on broad interpretations of
Constitutional language
Their decisions included some of
the more famous an consequential
th
of the 20 Century, but they also
led to a backlash.
Brown v. Board of Education
Baker v. Carr
Mapp v. Ohio
Engel v Vitale
Griswold v. Conn
This is especially true of Brown v.
Board of Education which led to
the dismantling of public education
in southern states, and a slow
mobilization against the court.
Nixon’s Southern Strategy involved
using resentment against the court
as a way of getting the votes of the
South.
Once Nixon became president, he
appointed William Rehnquist (who
had been a law clerk when Brown
was decided) an Associate Justice.
He would be elevated to Chief
Justice when Ronald Reagan
became President.
From 1968 – 1993, no Democratic
President would be able to make
an appointment to the Supreme
Court. Many, though not all, of the
Justices appointed during this time
promoted judicial restraint and
narrow interpretations of the
Constitution.
They rolled back many Warren
Court decisions.
Three Examples: One, they made it
difficult to prove racial
discrimination. Two, they made it
easier for illegally obtained
evidence to be introduced into
court. Three, they made it easier to
have religious displays on public
ground.
The U.S. Supreme Court
Click here for the current court
The Conservatives
Antonin Scalia
Clarence Thomas
John Roberts
Samuel Alito
The Liberals
Ruth Bader Ginsburg
Stephen Breyer
Elena Kagan (expected)
Sonia Sotomayor (expected)
The Swing Voter
Anthony Kennedy
Each justice is allowed to hire a
small handful of law clerks to assist
them. It is not unusual for law
clerks to later serve on the court.
See list of clerks here.
Data Regarding Recent Court
Decisions:
The Supreme Court Data Base
Scotus StatPack
How do cases get to the Supreme
Court?
Procedures
A case from a lower court is
appealed by the lowing party.
Specifically they request a Writ of
Certiorari. This is a writ where the
court asks the lower courts to send
it the trial and appellate records so
the court can search for errors.
If four justices choose to hear the
case it is placed on the court’s
calendar.
The Rule of Four.
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. The respondent – the party
that won at the lower level – can
also if it chooses. It doesn’t have
to.
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.
Oral arguments are held after the
briefs are read. Generally each side
generally has 30 minutes to make
their case. The proceedings can be
open-ended and even entertaining.
Click here for recordings and
transcripts.
After oral arguments are held,
conferences are held internally
which result in votes where the
justices line up for and against the
petitioner.
The Chief Justice assigns the
responsibility to write the majority
decision – the one that carries
weight – to whoever he chooses,
unless he wants to do it himself.
Those in the minority can write
dissenting opinions.
Any justice can write a concurring
opinions.