Supreme Court: Deciding What to Decide Chapter 14 Supreme Court: Deciding What to Decide Jurisdiction of the Supreme Court Original Jurisdiction Article III, cases affecting ambassadors, public ministers, consuls, or cases between states (e.g., water rights). Rare SC no longer hears the cases in trial format. A “special master” is appointed for this and reports back. Appellate Jurisdiction Goal of SC is no longer primarily to correct lower court errors. Instead, they are permitted to hear cases dealing with important issues of federal law. 3 methods: Appeal – required review of lower court decisions declaring state/federal laws unconstitutional. The only appeal they MUST hear comes from the 3-judge dc panels. Certiorari – SC may or may not choose to review

a lower court decision. Certification – appellate courts may ask the SC to “make certain” or clarify a point of Federal law. Doctrines of Access Justiciability – a case is justiciable if it is proper to be decided by the court. Court will not issue advisory opinions on legislative/executive acts (need a case) Standing - right to sue Components: Actual dispute (not hypothetical) Adversity – no friendly lawsuits; parties must have adverse stakes in the outcome. Direct legal injury for plaintiff – no 3rd party suits. Taxpayer lawsuits – generally, insufficient claim for standing (too minute and uncertain). Class action – all members must have real harm, not simply concern over “public interest”

Ripeness/Mootness – these concerning timing. Ripeness: case is brought too early (no harm has been done or alternatives not fully exhausted). Mootness: case brought too late (remedy no longer available; Roe). Political Questions – most ambiguous. Means no cases that are properly decided by other branches. Today, this means basically only foreign affairs. Getting the Case to SC Lawyers – two classes: Repeat players (SC Bar) – held on retainer specifically for SC cases (usually corporate cases). Novices – new to SC (usually noncommercial cases like civil liberties/criminal).

Interest Groups – participate directly by sponsoring litigants or indirectly via amicus curiae (amici) briefs. 18% of SC justice opinions cite amici. Liberal IG’s more successful than conservatives (libs=older/repeaters). Solicitor General – atty for the government/executive. Office on first floor of SC. Decides what executive agency appeals will be filed Advises SC justices on cases where U.S. is not a party. Files U.S. amici Most successful repeat player

Case Selection Little chance: 8,000 filed, 100 granted review. Cert petitions are mostly managed by law clerks who make recommendations on which cases to accept. Rule of Four: at a weekly conference, by custom, the judges discuss the cases and vote on cert. If 4 agree, it is accepted. Interpretation of denial: Means ONLY that the court leaves lower court decision undisturbed (don’t read into it) Screening Criteria: Must involve “substantial federal question” but that has not been defined. 5 Criteria for getting in: Federal Government as Petitioner: 50-75% of Solicitor requests are granted (compare to 5% for all else). Why? Repeat player and/or institutional deference. Conflict over law: Appellate court reverses district court; appellate judge writes a dissent; circuit conflict.

Justice Ideology: Two discoveries Grant cert when a lower court decision conflicts with their ideology (liberals more likely to hear criminal defendants) Strategic action or “defensive denial”: justices make ideologically based cert decisions based on expected action of colleagues. Means bias in favor of reversals (if you like it, leave the lower decision alone). Amicus Curia Activity: More likely to hear cases with many amici briefs. Demonstrates responsiveness. Issue Areas: Civil liberties issues mainly (not much majority appeal). Not as detectable lately. Court’s Docket: Begins term on first Monday in October until early summer. Number of cases: Original jurisdiction, only 1-2 a year. Pauper cases: 75% of total. Petitioner can’t afford the $300 filing fee and required 40 copies of brief. Mostly from criminal defendants.

Court may take 1 of 3 actions (#’s from 2005): Denial (6590) Summary decision (826): no orals, usually an unsigned memo stating the court’s decision and applicable law. Grant review (85): oral arguments Caseload growth: from none the first two years to 8000 now (Fig. 14-2). Most of the increase from criminal cases. Kinds of cases: half are constitutional; half are statutory (other laws) cases.