Procedures of the Supreme Court of the United States
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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.
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[edit] Terms and sittings
A "term" of the Supreme Court commences on the first Monday of each October (this is where the phrase "First Monday" comes from), 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.
[edit] The Court's authority to hear cases
[edit] Appellate jurisdiction
In nearly all of the cases heard by the Supreme Court, the Court exercises the appellate jurisdiction 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:
- 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 appeals or by the United States Court of Appeals for the Armed Forces.
- By petition for "certiorari before judgment," which permits the Court to expedite a case pending before a lower appellate court 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 judgement 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 appeal from certain decisions of United States District Courts in certain cases involving redistricting of congressional or state legislative districts, or when specifically authorized in a particular statute.
- By petition for writ of certiorari with respect to a decision of one of the state courts (including courts of Puerto Rico and the District of Columbia), after all state appeals have been exhausted, where an issue of Federal constitutional or statutory law is in question.
- By a certified question 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 writ" such as mandamus, prohibition, or habeas corpus. These writs are rarely granted by the Supreme Court though they are more frequently granted by lower courts.
[edit] 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 jurisdiction. 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 ambassadors, other public ministers and consuls, and those in which a state shall be party." The original jurisdiction of the Court is set forth in 28 U.S.C. § 1251.[1] 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.
[edit] Selection of cases
Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 7500 petitions for certiorari, of which approximately 150 are granted. 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, excepting Justice Stevens) have their clerks participate in the cert pool.
During the Justices' regular conference, the Justices discuss the petititions, and grant certiorari in approximately 150 cases each year; the request of any one Justice will suffice to raise a petition at conference (a petition not discussed at conference by term's end lapses), and 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.
[edit] Hearing cases
[edit] Filing briefs
Before oral arguments, the parties to a case file legal briefs 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 Rehnquist 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.
[edit] 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 in 1986, do so often.
[edit] Forming opinions
[edit] The conference: assignment of opinions
Immediately following oral arguments in a case, the Justices retreat in conference to discuss the points of law at issue in the case. 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.
Justice Scalia has professed frustration that there is little substantive discussion, while Justice Rehnquist has written that this makes the conference more efficient. The votes are then tallied, and the opinion in the case is assigned: the most senior Justice voting in the majority (which is the Chief Justice if he is in the majority) makes the assignment. Likewise, if the Court is not unanimous, the senior dissenting justice assigns the writing of the dissenting opinion.
[edit] 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 Justices John Paul Stevens and Antonin Scalia write their own first drafts of their opinions. 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. Ultimately, the Court's decision is the opinion which a majority (five) of justices have joined.
A justice voting with the majority may write a concurring opinion; this is an opinion where the justice agrees with the majority opinion 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.
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 clearcut 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 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.
[edit] 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 Reports. 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.
[edit] Record of cases heard by the Supreme Court
Supreme Court decisions are typically cited as in the following example: "Roe v. Wade, 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).
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.
[edit] Footnotes & 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.
