When the United States Supreme Court agrees to hear a case, the only part of the process that is open to the public is the oral argument. The rest of the deliberations take place behind closed doors between the nine judges and their teams of clerks. So how exactly do nine people reach a final decision on precedent-setting cases? Here’s a look at their seven-step process.
1: Accept the case
Although a few rare cases emanate from the Supreme Court, the country’s highest court is primarily an appeals court, meaning it rules on opinions already given by lower courts. The Supreme Court can only accept between 100 and 150 cases a year out of the 7,000 cases it is asked to consider.
Clerks do much of the heavy lifting of reviewing motions in the Supreme Court. Each judge hires three or four lawyers – top graduates from prestigious law schools – who read some of those 7,000 motions and write memos summarizing the cases and making recommendations on whether the Supreme Court should hear them.
In general, the Supreme Court is more likely to accept cases in which lower court rulings disagreed, creating a conflict of laws that judges could resolve. Judges can also choose to hear cases that they personally consider “important” or that deal with important social or political issues.
The judges meet twice a week for a private conference, and part of one of those weekly conferences is spent discussing potential cases and deciding which ones to accept. At least four of the nine justices must vote “yes” for a case to stand. Selected cases receive a writ of certioraria formal request from the Supreme Court to reconsider the decision of the lower court.
2: Summary files
For all cases appealed to the Supreme Court, there are two parties: a “petitioner” and a “respondent”. The petitioner is the party appealing the lower court’s decision and the defendant is the party who wishes to uphold the decision.
Once a case is accepted and added to the docket, the first step is for both parties to file briefs. Factums are summaries of each party’s arguments in the case, setting out the facts and explaining why the lower court’s decision should be upheld or reversed. According to the rules of the Supreme Court, briefs cannot exceed 50 pages and the petitioner must file his brief first, followed by the defendant.
Judges and their clerks carefully read these briefs and use them to form an initial opinion on the case. Additional memories called amicus curiae (Latin for “friend of the court”) can be filed by individuals and groups who are not directly involved in the case, but who have an interest in its outcome. If the federal government is not a party to the case, the United States Solicitor General could also file a brief summarizing the government’s position on the case.
3: Oral arguments
The Supreme Court tries cases differently from the criminal or civil proceedings commonly depicted on television.
For each case, the lawyers of the two parties have 30 minutes to make “oral arguments”. Rather than using this time to fully state their case, attorneys typically make a short opening statement and then answer questions from the judges. This is the real purpose of the pleadings, for the judges to clarify the arguments advanced and even to raise objections against them.
Oral arguments in the Supreme Court are open to the public, although seating is limited and fills up quickly for high-profile cases. But there are court transcripts dating back to 1968 available for playback and audio recordings from 2010.
As with briefs, the applicant presents its oral arguments first, followed by the respondent. If the petitioner so requests, he can refute the respondent’s comments.
The Supreme Court hears cases from October to April. In addition to hearing the arguments, the judges meet twice a week for conferences. These are closed sessions for the nine judges only, no clerks or other staff. Above all, it is during these private conferences that the judges for the first time share their opinions on the cases heard that week.
The Chief Justice begins by briefly outlining the facts of the case and the arguments advanced by both parties. Then the Chief Justice records his “preliminary vote,” so to speak, saying whether he “affirms” the lower court’s decision or “reverses” it. Then, the judge with the most seniority (the longest time on the Court) has a turn to speak and registers his vote. It continues that way through most junior justice.
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Once each judge takes their turn, each judge’s position should be clear, says Stephen Wermiel, a law professor at American University Washington College of Law. No further discussion is usually necessary, but each head judge has his or her own style. Wermiel says former Chief Justice William Rehnquist was opposed to open discussions at the conference table, while Justice Antonin Scalia favored them.
“Scalia was the only one to complain publicly that there was no more discussion,” says Wermiel. “He was a former law professor, so he liked the idea of arguing. He wanted the chance to convince people to change their minds and was frustrated that he didn’t have that chance under Rehnquist.
5: Assign reviews
The Supreme Court issues written opinions for all its cases. They are long, detailed documents that carry the weight of precedent from the highest court in the land, so writing an opinion is both a great honor and a great responsibility.
There are several types of opinions issued by the Supreme Court. At a minimum, the Court will issue a majority opinion, which will set out the prevailing party’s reasoning. If the Chief Justice sides with the majority, he can either write the opinion himself or assign it to another judge of the majority. The Chief Justice tries to ensure that each judge has the same opportunity to express majority opinions.
The judge or judges voting in the minority may also choose to write a dissenting opinion explaining why they disagree with the majority opinion. In this case, the judges of the minority decide whether they will “join” a dissenting opinion or write separate dissenting opinions.
In some cases, a judge votes with the majority but does not entirely agree with the legal reasoning set out in the majority opinion. In this situation, the judge may choose to issue a “concurring” opinion that sets out his specific reasoning.
6: Circulate draft reviews
These preliminary votes taken in conference are not final until the opinions are written, approved and made public. A lot of negotiation takes place during the majority opinion writing process, and every now and then a judge switches sides.
The judge responsible for drafting the majority opinion tries his hand at a first draft (with much help from his legal aides). This draft is then distributed to the other eight judges, or sometimes only to the other members of the majority first. The other judges and their clerks carefully read the draft and issue their written response.
“What the author of the majority opinion wants to see is a note that says, ‘Please join me in your opinion,'” Wermiel says. “It’s weird syntax, but it’s the way the Supreme Court says, ‘You can count me as a vote. “”
In a close decision (say 5 to 4), a hesitant judge may withhold his approval until he has read the dissenting or concurring opinions. In this case, justice will respond: “I will wait for other writings in this case”. Or a judge can respond with detailed notes on which parts of the majority’s argument need to change in order to secure their vote.
If the minority chooses to write a dissenting opinion, these drafts are also distributed to the other judges. The author of the majority opinion often addresses the arguments made in the dissenting opinion by footnotes added to later versions of the majority opinion. The drafting process could last for weeks or even months, as all the judges step in and deliver their final opinions.
Chief Justice John Roberts switched sides during the process of drafting the 2012 Supreme Court decision that upheld the Affordable Care Act’s constitutionality. At the conference, Roberts initially voted to repeal the law, but his thinking changed during the process of writing the majority opinion and in conversations with the dissenting justices.
“People change their minds about what they’re thinking,” the late Justice Ruth Bade Ginsberg told CNN in 2012. it should work. We’re trying to persuade each other and then the public.
7: Opinions are made public
Nothing is final until the majority opinion is read in court and made available to the public. Werniel says the writing and editing process may be “up to the last minute” before the notice is published.
There is no fixed timeline for how quickly an opinion is issued after oral arguments, but the final deadline for issuing opinions is late June or early July, when the Supreme Court takes a summer recess. As standard practice, the author of the majority opinion reads a summary of the bench’s opinion and then the full document is posted on the Supreme Court’s website.