The Modern Supreme Court:How it Works

How Does a Case Reach the Supreme Court?

• Criteria For Any Case1) Must be an actual dispute (No

hypotheticals)2) The Party bringing the case must have

standing3) 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 OpinionThis 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) OpinionA 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.

The Roberts Court (2005-Current)

Liberal Moderate Conservative

Antonin Scalia (Appointed 1986 by Ronald Reagan)Conservative Constructionist

Has written more concurring opinions than any other judge during his tenure. And the second

most dissenting opinionsIs the most vocal in questioning opponents during

oral agruments

Anthony Kennedy (Appointed 1988 by Ronald Reagan)Moderate leaning Conservative

Is often described as the “Swing Vote” on the current court. Recently has began relying on international law to help interpret the Constitution, especially in cases

involving “modern human rights.”

Clarence Thomas (Appointed 1991 by George H.W. Bush)Conservative Activist

Most controversial member of the court.Barely won confirmation despite accusation of sexual

harassment and non-qualified rating by the ABA.Doesn’t ask any questions during oral arguments.

Ruth Bader Ginsburg (Appointed 1993 by Bill Clinton)Liberal

Advocate of dialogue with other branches despite fears it would politicize the court.

Often seek consensus building.Advocates looking at international law as well as women’s rights

Stephen Breyer (Appointed 1994 by Bill Clinton)Liberal Activist

The counter opinion to Scalia, even going so far as to write a book countering his legal philosophy

Pragmatic decision maker.Lowest rate of overturning congressional actions.

John Roberts (Appointed 2005 by George W. Bush)Conservative Constructionist

Named Chief Justice upon Rehnquist’s death.Has rules very similar to Rehnquist (He was a clerk to him)

Too early to give any consistent positionsDeciding vote that ruled Health Care constitutional.

Samuel Alito Jr. (Appointed 2006 by George W. Bush)Conservative Constructionist

Had a very contentious confirmation hearing, surviving an attempted Democratic filibuster, and being only the second nominee in history that

the American Civil Liberties Union has opposed confirmation for. Confirmed by final vote of 58-42.

Nicknamed “Scalito” for his previous rulings being much in line with Scalia’s judicial philosophy.

Has issued a dissent suggesting Roe v. Wade be overturned.

Elena Kagan (Appointed 2010 by Barack Obama)Liberal leaning Moderate

First justice appointed without any previous Judicial experience since William Rehnquist.

Served as a law professor at Harvard and became Solicitor General (the lawyer representing the U.S. in Supreme Court hearings) before

nomination.Has been praised early on for the quality of her opinion writing saying

they can give Scalia a run for his money.

Sonia Sotomayor (Appointed 2009 by Barack Obama)Liberal

First Hispanic on the Supreme Court.Too early to tell if she falls under the activist or constructionist

philosophy but speculation is that she is Activist.

The Roberts Court• 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