Procedures of the Supreme Court of the United States
Encyclopedia
The Supreme Court of the United States
is the only court
specifically established by the Constitution of the United States, implemented in 1789.
This article is concerned with the process and procedures used by the modern court. For general discussion of the court's jurisdiction and composition, see Supreme Court of the United States
; for discussion of the court's present and historical accommodations, see United States Supreme Court building
; for discussion of the history of the court, see history of the Supreme Court of the United States
.
granted it by Article III
of the Constitution. This authority permits the Court to review – and affirm or overturn – decisions made by lower courts and tribunals. Procedures for bringing cases before the Supreme Court have changed significantly over time. Today, cases are brought before the Supreme Court by one of several methods, of which the first two account for the overwhelming majority of cases decided:
. The Supreme Court's authority in this respect is also derived from Article III of the Constitution
, which states that the Supreme Court shall have original jurisdiction "in all cases affecting ambassador
s, other public ministers and consul
s, and those in which a state shall be party." The original jurisdiction of the Court is set forth in . This statute provides further that, in the case of disputes between two or more states, the Supreme Court holds both original and exclusive jurisdiction
and no lower court may hear such cases.
The number of original jurisdiction cases heard by the court is small; generally only one or two such cases are heard per term. Because the nine-member Supreme Court is not well-suited to conducting pretrial proceedings or trials, original jurisdiction cases accepted by the Court are typically referred to a well-qualified lawyer or lower-court judge to serve as special master
, conduct the proceedings, and report recommendations to the Court. The Court then considers whether to accept the special master's report or whether to sustain any exceptions filed to the report.
Although jury trials are in theory possible in the Court's original jurisdiction cases, there has not been one since Georgia v. Brailsford
in 1794. In 1950, in the case United States v. Louisiana, the state of Louisiana moved for a jury trial, but the Court denied the motion, ruling that the suit was an equity action and not an action at law, and that therefore the Seventh Amendment
guarantee of a jury trial did not apply. If matter involving an action at law did come before the court, however, a jury would likely be empaneled and would hear the case alongside the justices of the Court.
("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 10,000 petitions for certiorari, of which approximately 100 are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review. In theory, each Justice's clerks write a brief for the Justice outlining the questions presented, and offering a recommendation as to whether certiorari should be granted; in practice, most Justices (all of the current court, except Justice Alito
) have their clerks participate in the cert pool
.
During the Justices' regular conference, the Justices discuss the petitions, and grant certiorari in less than five percent of the cases filed. (During the 1980s and 1990s, the number of cases accepted and decided each term approached 150 per year; more recently, the number of cases granted has averaged well under 100 annually). Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the "discuss list"; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be "re-listed" for discussion at a later conference; this occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted.
The votes of four Justices at Conference (see Rule of four
) will suffice to grant certiorari and place the case on the court's calendar. If the Supreme Court grants certiorari (or the certified question or other extraordinary writ), then a briefing schedule is arranged for the parties to submit their briefs in favor of or against a particular form of relief. During this time, an individual or group having an interest in a case but is not a party to the case may submit a motion to appear before the court as amicus curiae
("friend of the court"). Except for certain specific categories (such as lawyers for state and local governments) or where all parties to the case consent, it is in the Court's discretion whether such motions are granted.
The grant or denial of certiorari petitions by the Court are usually issued as one-sentence orders without explanation.
Cases that fall within the Court's original jurisdiction are initiated by filing a complaint directly with the Supreme Court, and normally are assigned to a special master
appointed by the Court for the taking of evidence and making recommendations, after which the Court may accept briefs and hear oral arguments as in an appellate case.
outlining their arguments. An amicus curiae may also submit a brief in support of a particular outcome in the case if the Court grants it permission. Formal rules govern every aspect of these briefs; Chief Justice
William Rehnquist
described the rules thus:
To file pleadings or to argue a case, an attorney must be a member of the bar of the Court. (The primary requirement for admission to the Bar is that the attorney must have been admitted to practice in the highest court of a state or territory for at least the past three years.) Justices are allowed to interrupt the attorney speaking in order to ask him or her questions, and particularly since the arrival of Justice Antonin Scalia
in 1986, do so often.
The Court began recording Oral Arguments in October 1955. Beginning in October 2010, the Supreme Court began the practice of posting recordings and transcripts of the oral arguments made during the preceding week on Fridays on the Court's website.
In an interview for C-SPAN, Justice Scalia, speaking for himself, noted that by the time the Justices hear oral arguments, having read the submissions by the parties and amici, it is "very rare, though not unheard of", for the discussion during the oral arguments to change his view of a case in which he has already made up his mind based on the submissions and his research about the case. However, he also made the point that it is "quite common" for him to go into Oral Arguments with his mind not made up yet, as the cases are usually very hard and difficult, and that in those situations a persuasive attorney can make the difference for him.
Justice Scalia has professed frustration that there is little substantive discussion, while former Chief Justice Rehnquist wrote that this makes the conference more efficient. The votes are tallied, and the responsibility for writing the opinion in the case is assigned to one of the justices; the most senior Justice voting in the majority (which is the Chief Justice if he is in the majority) makes the assignment, and can assign the responsibility to him or her self.
regularly writes his own first drafts. Once the draft opinion has been reviewed, the remaining Justices may recommend changes to the opinion. Whether these changes are accommodated depends on the legal philosophy of the drafters as well as on how strong a majority the opinion garnered at conference. A justice may instead simply join the opinion at that point without comment.
Votes at conference are preliminary; while opinions are being circulated, it is not unheard of for a justice to change sides. A justice may be swayed by the persuasiveness (or lack thereof) of the opinion or dissent, or as a result of reflection and discussion on the points of law at issue.
The evolution of the justices' views during the circulation of draft opinions can change the outcome of the case; an opinion that begins as a majority opinion can become a dissenting opinion, and vice versa. At the conference for Planned Parenthood v. Casey
, Justice Kennedy
is said to have initially voted with Chief Justice Rehnquist, but then changed his mind, feeling unable to join Rehnquist's draft opinion. While working for the Justice Department, present-day Chief Justice John Roberts
- a former Rehnquist law clerk - wrote an analysis of Wallace v. Jaffree
in which he indicated his belief (based on the length and structure) that Rehnquist's dissent had started out as an opinion for the court, but lost its majority; similar speculation is often heard of Justice O'Connor
's dissent in Kelo v. New London. Justice Kennedy is known within the Court for changing his mind subsequent to the conference, and Justice Thomas
is known for having the tendency to lose a majority. Justices may change sides at any time prior to the handing down of the Court's opinion. Generally, the Court's decision is the opinion which a majority (five) of justices have joined. In rare instances, the Court will issue a plurality opinion
in which four or fewer Justices agree on one opinion, but the others are so fractured that they cannot agree on a position. In this circumstance, in order to determine what the decision is lawyers and judges will analyze the opinions to determine on which points a majority agrees. An example of a case decided by a plurality opinion is Hamdi v. Rumsfeld
.
A justice voting with the majority may write a concurring opinion
; this is an opinion where the justice agrees with the majority holding itself, but where he or she wishes to express views on the legal elements of the case that are not encompassed in the majority opinion. Justices who do not agree with the decision made by the majority may also submit dissenting
opinions, which may give alternative legal viewpoints. Dissenting opinions carry no legal weight or precedent, but they can set the argument for future cases. John Marshall Harlan's dissent in Plessy v Ferguson set down for the majority opinion later in Brown v. Board of Education
.
After granting a writ of certiorari and accepting a case for review, the justices may decide against further review of the case. For example, the Court may feel the case presented during oral arguments did not present the constitutional issues in a clear-cut way, and that adjudication of these issues is better deferred until a suitable case comes before the court. In this event the writ of certiorari is "dismissed as improvidently granted" — saying, in effect that the Court should not have accepted the case. As with the granting or denial of cert, this dismissal is customarily made using a simple per curiam decision without explanation.
Customarily, justices who were not seated at the time oral arguments were heard by the Supreme Court do not participate in the formulation of an opinion. Likewise, a justice leaving the Court prior to the handing down of an opinion does not take part in the Court's opinion. Should the composition of the Court materially affect the outcome of a pending case, the justices will likely elect to reschedule the case for rehearing.
A quorum of justices to hear and decide a case is six. If, through recusals or vacancies, fewer than six justices can participate in a case, and a majority of qualified justices determines that the case cannot be heard in the next term, then the decision of the court below is affirmed as if the Court had been equally divided on the case. An exception exists when this situation arises in one of the now-rare cases brought directly to the Supreme Court on appeal from a United States District Court; in this situation, the case is referred to the U.S. Court of Appeals for the corresponding circuit for a final decision there by either the Court of Appeals sitting en banc, or a panel consisting of the three most senior active circuit judges.
. In recent years, opinions have been available on the Supreme Court's website and other legal websites on the morning they are announced.
The opinion of the Court is usually signed by the author; occasionally, the Supreme Court may issue an unsigned opinion per curiam
. The practice of issuing a single opinion of the Court was initiated during the tenure of Chief Justice John Marshall
during the early nineteenth century. This custom replaced the previous practice under which each Justice, whether in the majority or the minority, issued a separate opinion. The older practice is still followed by appellate courts in many common law
jurisdictions outside the United States.
, 410 U.S. 113 (1973)." The court citation
consists of the names of the opposing parties; the volume number; "U.S." (signifying United States Reports
, the official reporter of Supreme Court decisions); the page number on which the decision begins; and the year in which the case was decided. The names of the opposing parties are listed in the format "Petitioner v. Respondent" or "Appellant v. Appellee." The Reporter of Decisions
is responsible for publication of the Court's rulings. Two other widely used citation formats exist: the Supreme Court Reporter and the Lawyer's Edition, corresponding to two privately published collections of decisions. Citations to cases in the Supreme Court Reporter would be structured as follows: Snowden v. Hughes, 64 S. Ct. 397 (1944). Citations to cases in the Lawyer's Edition would be as follows: Snowden v. Hughes, 88 L. Ed. 497 (1944). Judicial opinions often use the citation from all three sources (the United States Reports, Supreme Court Reporter, and Lawyer's Edition), as seen here: Martin v. Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497 (1906). Since the 1930s, prior to publication of the decisions in these reporters, they are available from the United States Law Week ("U.S.L.W.). In more recent years, opinions have been available electronically soon after they appeared on commercial sites such as Lexis or Westlaw, and on Internet sites such as Findlaw and the Court's own website.
The Reporter of Decisions is the court official responsible for the publication of the Court's opinions and orders. The current Reporter of Decisions is Christine Luchok Fallon.
Decisions of the Supreme Court are precedents that bind all lower courts, both federal and state. The Supreme Court generally respects its own precedents, but has in some cases overturned them.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
is the only court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
specifically established by the Constitution of the United States, implemented in 1789.
This article is concerned with the process and procedures used by the modern court. For general discussion of the court's jurisdiction and composition, see Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
; for discussion of the court's present and historical accommodations, see United States Supreme Court building
United States Supreme Court building
The Supreme Court Building is the seat of the Supreme Court of the United States. It is situated in Washington, D.C. at 1 First Street, NE, on the block immediately east of the United States Capitol. The building is under the jurisdiction of the Architect of the Capitol. On May 4, 1987, the Supreme...
; for discussion of the history of the court, see history of the Supreme Court of the United States
History of the Supreme Court of the United States
The following is a history of the Supreme Court of the United States, organized by Chief Justice. The Supreme Court of the United States is the only court specifically established by the Constitution of the United States, implemented in 1789; under the Judiciary Act of 1789, the Court was to be...
.
Terms and sittings
A term of the Supreme Court commences on the first Monday of each October, and continues until June or early July of the following year. Each term consists of alternating periods of approximately two weeks known as "sittings" and "recesses." Justices hear cases and deliver rulings during sittings; they discuss cases and write opinions during recesses.Appellate jurisdiction
In nearly all of the cases heard by the Supreme Court, the Court exercises the appellate jurisdictionAppellate jurisdiction
Appellate jurisdiction is the power of the Supreme Court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right...
granted it by Article III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
of the Constitution. This authority permits the Court to review – and affirm or overturn – decisions made by lower courts and tribunals. Procedures for bringing cases before the Supreme Court have changed significantly over time. Today, cases are brought before the Supreme Court by one of several methods, of which the first two account for the overwhelming majority of cases decided:
- By petition for a writ of certiorari, filed by a party to a case that has been decided by one of the United States courts of appealsUnited States court of appealsThe United States courts of appeals are the intermediate appellate courts of the United States federal court system...
or by the United States Court of Appeals for the Armed ForcesUnited States Court of Appeals for the Armed ForcesThe United States Court of Appeals for the Armed Forces or CAAF is an Article I court that exercises worldwide appellate jurisdiction over members of the United States armed forces on active duty and other persons subject to the Uniform Code of Military Justice...
. - By petition for writ of certiorariCertiorariCertiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
with respect to a decision of one of the state courts (including courts of Puerto RicoPuerto RicoPuerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
and the District of Columbia), after all state appeals have been exhausted, where an issue of federal constitutionalUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
or statutoryStatuteA statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
law is in question. The writ is usually issued to a state supreme courtState supreme courtIn the United States, the state supreme court is the highest state court in the state court system ....
, but is occasionally issued to a state's intermediate appellate court for cases where the state supreme court denied certiorari or review and thereby refused to hear the appeal. - By petition for "certiorari before judgment," which permits the Court to expedite a case pending before a United States court of appeals by accepting the case for review before the appellate court has decided it. However, Supreme Court Rule 11 provides that a case may be taken by the Court before judgment in a lower court "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."
- By appealAppealAn appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
from certain decisions of United States district courtUnited States district courtThe United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
s in certain cases involving redistricting of congressional or state legislative districts, or when specifically authorized in a particular statute. - By a certified questionCertified questionIn the law of the United States, a certified question is a formal request by one court to one of its sister courts, usually but not always in another jurisdiction, for an opinion on a question of law....
or proposition of law from one of the United States Courts of Appeals, meaning that the Court of Appeals requests the Supreme Court to instruct it on how to decide the case. This procedure was once common but is now rarely invoked; the last certificate accepted for review was in 1981. - By petition for an "extraordinary writWritIn common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
" such as mandamusMandamusA writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
, prohibition, or habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. These writs are rarely granted by the Supreme Court though they are more frequently granted by lower courts.
Original jurisdiction
Certain cases that have not been considered by a lower court may be heard by the Supreme Court in the first instance under what is termed original jurisdictionOriginal jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
. The Supreme Court's authority in this respect is also derived from Article III of the Constitution
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
, which states that the Supreme Court shall have original jurisdiction "in all cases affecting ambassador
Ambassador
An ambassador is the highest ranking diplomat who represents a nation and is usually accredited to a foreign sovereign or government, or to an international organization....
s, other public ministers and consul
Consul
Consul was the highest elected office of the Roman Republic and an appointive office under the Empire. The title was also used in other city states and also revived in modern states, notably in the First French Republic...
s, and those in which a state shall be party." The original jurisdiction of the Court is set forth in . This statute provides further that, in the case of disputes between two or more states, the Supreme Court holds both original and exclusive jurisdiction
Exclusive jurisdiction
In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...
and no lower court may hear such cases.
The number of original jurisdiction cases heard by the court is small; generally only one or two such cases are heard per term. Because the nine-member Supreme Court is not well-suited to conducting pretrial proceedings or trials, original jurisdiction cases accepted by the Court are typically referred to a well-qualified lawyer or lower-court judge to serve as special master
Special master
In law, a special master is an authority appointed by a judge to make sure that judicial orders are actually followed.In England, at common law, there were "Masters in Chancery," who acted in aid of the Equity Courts. There were also "Masters in Lunacy," who conducted inquiries of the same nature...
, conduct the proceedings, and report recommendations to the Court. The Court then considers whether to accept the special master's report or whether to sustain any exceptions filed to the report.
Although jury trials are in theory possible in the Court's original jurisdiction cases, there has not been one since Georgia v. Brailsford
Georgia v. Brailsford
Georgia v. Brailsford is the name of three Supreme Court of the United States decisions:*Georgia v. Brailsford 2 U.S. 402, involving state rights to collect debt from foreign citizens*Georgia v. Brailsford 2 U.S. 415...
in 1794. In 1950, in the case United States v. Louisiana, the state of Louisiana moved for a jury trial, but the Court denied the motion, ruling that the suit was an equity action and not an action at law, and that therefore the Seventh Amendment
Seventh Amendment to the United States Constitution
The Seventh Amendment to the United States Constitution, which was ratified as part of the Bill of Rights, codifies the right to a jury trial in certain civil cases. However, in some civil cases, the Supreme Court has not incorporated the right to a jury trial to the states in the fashion which...
guarantee of a jury trial did not apply. If matter involving an action at law did come before the court, however, a jury would likely be empaneled and would hear the case alongside the justices of the Court.
Selection of cases
Since the Judiciary Act of 1925Judiciary Act of 1925
The Judiciary Act of 1925 , also known as the Certiorari Act, was an act of the United States Congress which sought to reduce the workload of the Supreme Court of the United States....
("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 10,000 petitions for certiorari, of which approximately 100 are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review. In theory, each Justice's clerks write a brief for the Justice outlining the questions presented, and offering a recommendation as to whether certiorari should be granted; in practice, most Justices (all of the current court, except Justice Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
) have their clerks participate in the cert pool
Cert pool
The "cert. pool" is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E...
.
During the Justices' regular conference, the Justices discuss the petitions, and grant certiorari in less than five percent of the cases filed. (During the 1980s and 1990s, the number of cases accepted and decided each term approached 150 per year; more recently, the number of cases granted has averaged well under 100 annually). Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the "discuss list"; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be "re-listed" for discussion at a later conference; this occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted.
The votes of four Justices at Conference (see Rule of four
Rule of four
The rule of four is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court's docket...
) will suffice to grant certiorari and place the case on the court's calendar. If the Supreme Court grants certiorari (or the certified question or other extraordinary writ), then a briefing schedule is arranged for the parties to submit their briefs in favor of or against a particular form of relief. During this time, an individual or group having an interest in a case but is not a party to the case may submit a motion to appear before the court as amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
("friend of the court"). Except for certain specific categories (such as lawyers for state and local governments) or where all parties to the case consent, it is in the Court's discretion whether such motions are granted.
The grant or denial of certiorari petitions by the Court are usually issued as one-sentence orders without explanation.
Cases that fall within the Court's original jurisdiction are initiated by filing a complaint directly with the Supreme Court, and normally are assigned to a special master
Special master
In law, a special master is an authority appointed by a judge to make sure that judicial orders are actually followed.In England, at common law, there were "Masters in Chancery," who acted in aid of the Equity Courts. There were also "Masters in Lunacy," who conducted inquiries of the same nature...
appointed by the Court for the taking of evidence and making recommendations, after which the Court may accept briefs and hear oral arguments as in an appellate case.
Filing briefs
Before oral arguments, the parties to a case file legal briefsBrief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
outlining their arguments. An amicus curiae may also submit a brief in support of a particular outcome in the case if the Court grants it permission. Formal rules govern every aspect of these briefs; Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
described the rules thus:
- The rules direct what information must be included in a brief, describe the size of paper and type of print, and limit the number of pages. Even the colors of the covers of the briefs are specified: the petitioner's brief must have a blue cover and the respondent's must have a red cover. The Court also often receives briefs from amici curiae—friends of the Court — in particular cases, and these must have a green cover. This color-coding comes in very handy when you have a stack of eight or ten briefs in a particular case and can locate the brief you want by its color without having to read the covers of each.
Oral arguments
Thereafter, if the Court chooses to hold a hearing, each side has thirty minutes to present its case orally. In exceptional and controversial cases, however, the time limit may be extended. In the Court's early years, attorneys might argue a single case for hours or even days; but as the judicial workload increased, the time available for argument has been restricted. The late Chief Justice Rehnquist was noted for his especially strict enforcement of the argument time limits.To file pleadings or to argue a case, an attorney must be a member of the bar of the Court. (The primary requirement for admission to the Bar is that the attorney must have been admitted to practice in the highest court of a state or territory for at least the past three years.) Justices are allowed to interrupt the attorney speaking in order to ask him or her questions, and particularly since the arrival of Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
in 1986, do so often.
The Court began recording Oral Arguments in October 1955. Beginning in October 2010, the Supreme Court began the practice of posting recordings and transcripts of the oral arguments made during the preceding week on Fridays on the Court's website.
In an interview for C-SPAN, Justice Scalia, speaking for himself, noted that by the time the Justices hear oral arguments, having read the submissions by the parties and amici, it is "very rare, though not unheard of", for the discussion during the oral arguments to change his view of a case in which he has already made up his mind based on the submissions and his research about the case. However, he also made the point that it is "quite common" for him to go into Oral Arguments with his mind not made up yet, as the cases are usually very hard and difficult, and that in those situations a persuasive attorney can make the difference for him.
The conference: assignment of opinions
At the end of a week in which the Court has heard oral arguments, the Justices hold a conference to discuss the cases and vote on any new petitions of certiorari. The Justices discuss the points of law at issue in the cases. No clerks are permitted to be present, which would make it exceedingly difficult for a justice without a firm grasp of the matters at hand to participate. At this conference, each justice - in order from most to least senior - states the basis on which he or she would decide the case, and a preliminary vote is taken.Justice Scalia has professed frustration that there is little substantive discussion, while former Chief Justice Rehnquist wrote that this makes the conference more efficient. The votes are tallied, and the responsibility for writing the opinion in the case is assigned to one of the justices; the most senior Justice voting in the majority (which is the Chief Justice if he is in the majority) makes the assignment, and can assign the responsibility to him or her self.
Circulating draft opinions and changing of views
The justice writing the opinion for the court will produce and circulate a draft opinion to the other justices. Each justice's law clerks may be involved in this phase. In today's Supreme Court, only Justice Antonin ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
regularly writes his own first drafts. Once the draft opinion has been reviewed, the remaining Justices may recommend changes to the opinion. Whether these changes are accommodated depends on the legal philosophy of the drafters as well as on how strong a majority the opinion garnered at conference. A justice may instead simply join the opinion at that point without comment.
Votes at conference are preliminary; while opinions are being circulated, it is not unheard of for a justice to change sides. A justice may be swayed by the persuasiveness (or lack thereof) of the opinion or dissent, or as a result of reflection and discussion on the points of law at issue.
The evolution of the justices' views during the circulation of draft opinions can change the outcome of the case; an opinion that begins as a majority opinion can become a dissenting opinion, and vice versa. At the conference for Planned Parenthood v. Casey
Planned Parenthood v. Casey
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
, Justice Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
is said to have initially voted with Chief Justice Rehnquist, but then changed his mind, feeling unable to join Rehnquist's draft opinion. While working for the Justice Department, present-day Chief Justice John Roberts
John Roberts
John Glover Roberts, Jr. is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist...
- a former Rehnquist law clerk - wrote an analysis of Wallace v. Jaffree
Wallace v. Jaffree
Wallace v. Jaffree, , was a United States Supreme Court case deciding on the issue of silent school prayer.An Alabama law authorized teachers to set aside one minute at the start of each day for a moment of "silent meditation or voluntary prayer," and sometimes the teacher of the classroom asked...
in which he indicated his belief (based on the length and structure) that Rehnquist's dissent had started out as an opinion for the court, but lost its majority; similar speculation is often heard of Justice O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
's dissent in Kelo v. New London. Justice Kennedy is known within the Court for changing his mind subsequent to the conference, and Justice Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
is known for having the tendency to lose a majority. Justices may change sides at any time prior to the handing down of the Court's opinion. Generally, the Court's decision is the opinion which a majority (five) of justices have joined. In rare instances, the Court will issue a plurality opinion
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
in which four or fewer Justices agree on one opinion, but the others are so fractured that they cannot agree on a position. In this circumstance, in order to determine what the decision is lawyers and judges will analyze the opinions to determine on which points a majority agrees. An example of a case decided by a plurality opinion is Hamdi v. Rumsfeld
Hamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
.
A justice voting with the majority may write a concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
; this is an opinion where the justice agrees with the majority holding itself, but where he or she wishes to express views on the legal elements of the case that are not encompassed in the majority opinion. Justices who do not agree with the decision made by the majority may also submit dissenting
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
opinions, which may give alternative legal viewpoints. Dissenting opinions carry no legal weight or precedent, but they can set the argument for future cases. John Marshall Harlan's dissent in Plessy v Ferguson set down for the majority opinion later in Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
.
After granting a writ of certiorari and accepting a case for review, the justices may decide against further review of the case. For example, the Court may feel the case presented during oral arguments did not present the constitutional issues in a clear-cut way, and that adjudication of these issues is better deferred until a suitable case comes before the court. In this event the writ of certiorari is "dismissed as improvidently granted" — saying, in effect that the Court should not have accepted the case. As with the granting or denial of cert, this dismissal is customarily made using a simple per curiam decision without explanation.
Customarily, justices who were not seated at the time oral arguments were heard by the Supreme Court do not participate in the formulation of an opinion. Likewise, a justice leaving the Court prior to the handing down of an opinion does not take part in the Court's opinion. Should the composition of the Court materially affect the outcome of a pending case, the justices will likely elect to reschedule the case for rehearing.
Tied votes and lack of quorum
If not all of the nine justices vote on a case, or the Court has a vacancy, then there is the possibility of a tied vote. If this occurs, then the decision of the court below is affirmed, but the case is not considered to be binding precedent. The effect is a return to the status quo ante. No opinions are issued in such a case, only the one-sentence announcement that "[t]he judgment is affirmed by an equally divided Court."A quorum of justices to hear and decide a case is six. If, through recusals or vacancies, fewer than six justices can participate in a case, and a majority of qualified justices determines that the case cannot be heard in the next term, then the decision of the court below is affirmed as if the Court had been equally divided on the case. An exception exists when this situation arises in one of the now-rare cases brought directly to the Supreme Court on appeal from a United States District Court; in this situation, the case is referred to the U.S. Court of Appeals for the corresponding circuit for a final decision there by either the Court of Appeals sitting en banc, or a panel consisting of the three most senior active circuit judges.
Announcement of opinions
Throughout the term, but mostly during the last months of the term—May, June, and, if necessary, July—the Court announces its opinions. The decision of the Court is subsequently published, first as a slip opinion, and subsequently in the United States ReportsUnited States Reports
The United States Reports are the official record of the rulings, orders, case tables, and other proceedings of the Supreme Court of the United States. Opinions of the court in each case, prepended with a headnote prepared by the Reporter of Decisions, and any concurring or dissenting opinions are...
. In recent years, opinions have been available on the Supreme Court's website and other legal websites on the morning they are announced.
The opinion of the Court is usually signed by the author; occasionally, the Supreme Court may issue an unsigned opinion per curiam
Per curiam decision
In law, a per curiam decision is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively and anonymously...
. The practice of issuing a single opinion of the Court was initiated during the tenure of Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
during the early nineteenth century. This custom replaced the previous practice under which each Justice, whether in the majority or the minority, issued a separate opinion. The older practice is still followed by appellate courts in many common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions outside the United States.
Reporting and citation of cases
Supreme Court decisions are typically cited as in the following example: "Roe v. WadeRoe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, 410 U.S. 113 (1973)." The court citation
Citation
Broadly, a citation is a reference to a published or unpublished source . More precisely, a citation is an abbreviated alphanumeric expression Broadly, a citation is a reference to a published or unpublished source (not always the original source). More precisely, a citation is an abbreviated...
consists of the names of the opposing parties; the volume number; "U.S." (signifying United States Reports
United States Reports
The United States Reports are the official record of the rulings, orders, case tables, and other proceedings of the Supreme Court of the United States. Opinions of the court in each case, prepended with a headnote prepared by the Reporter of Decisions, and any concurring or dissenting opinions are...
, the official reporter of Supreme Court decisions); the page number on which the decision begins; and the year in which the case was decided. The names of the opposing parties are listed in the format "Petitioner v. Respondent" or "Appellant v. Appellee." The Reporter of Decisions
Supreme Court of the United States Reporter of Decisions
The Reporter of Decisions of the Supreme Court of the United States is the official charged with editing and publishing the Court's opinions both when announced and when they are published in permanent bound volumes of the United States Reports. The Reporter of Decisions is responsible for only...
is responsible for publication of the Court's rulings. Two other widely used citation formats exist: the Supreme Court Reporter and the Lawyer's Edition, corresponding to two privately published collections of decisions. Citations to cases in the Supreme Court Reporter would be structured as follows: Snowden v. Hughes, 64 S. Ct. 397 (1944). Citations to cases in the Lawyer's Edition would be as follows: Snowden v. Hughes, 88 L. Ed. 497 (1944). Judicial opinions often use the citation from all three sources (the United States Reports, Supreme Court Reporter, and Lawyer's Edition), as seen here: Martin v. Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497 (1906). Since the 1930s, prior to publication of the decisions in these reporters, they are available from the United States Law Week ("U.S.L.W.). In more recent years, opinions have been available electronically soon after they appeared on commercial sites such as Lexis or Westlaw, and on Internet sites such as Findlaw and the Court's own website.
The Reporter of Decisions is the court official responsible for the publication of the Court's opinions and orders. The current Reporter of Decisions is Christine Luchok Fallon.
Decisions of the Supreme Court are precedents that bind all lower courts, both federal and state. The Supreme Court generally respects its own precedents, but has in some cases overturned them.
Footnotes and references
- Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 850; Rehnquist, Remarks at University of Guanajuato, Mexico, 9/27/01.
- See, e.g., Booknotes, 6/14/98.
- Mauro, Roberts Dips Toe Into Cert Pool; Law.com, 10/21/05. Regarding the picking of cases, see generally, Rehnquist, The Supreme Court, rev. 2d ed. 2001) at 224-238.
- Rehnquist, speech at Guanajuato, supra n1; cf. VII Supreme Ct. Rules 33).
- Talbot, Supreme Confidence: The jurisprudence of Justice Antonin Scalia; The New Yorker, 3/28/05 ("In his early years on the Court, Scalia's exuberant questioning was not well received by his colleagues . . . In Scalia's first oral argument he asked so many questions that Powell whispered, 'Do you think he knows that the rest of us are here?' The other Justices have since caught up with Scalia. Now all of them - with the exception of Clarence Thomas - are garrulous"); Linder, Justices Brennan & Scalia Debate Creation-Science ("On a bench lined with solemn gray figures who often sat as silently as pigeons on a railing, Scalia stood out like a talking parrot").
-
-
- Rehnquist, The Supreme Court, supra, at 253.
- Lazarus, Closed Chambers p. 285 ("to call our discussion of a case a conference is really something of a misnomer. It's much more a statement of the views of each of the nine justices").
- Rehnquist, The Supreme Court, supra n3, at 254-58.
- Lazarus, supra n6, p. 271.
- See Tushnet, A Court Divided.
- See, e.g., Zimmerman, Justice Blackmun's Papers Reveal Near Overturn of Roe; Catholic Herald, 3/18/04.
- Roberts, memo to Fred F. Fielding, June 4, 1985.
- See, e.g., Claeys, Did O'Connor lose the majority?; SCOTUSblog, 6/24/05.
- U.S.C. Title 28, Section 1, U.S.C. Title 28, Section 2109.
External links
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