SCOTUS Policy Makers

How does the Supreme Court operate? Courts intro How does the Supreme Court operate?

Independence Federal Courts

Courts Independence Independence It is critical that the court system be independent of the other branches It is critical that the court system be insulated from public opinion This allows the court & the judges to make decisions without worry They are able to make the best decision, not the popular or politically convenient one

Courts Independence Independent from Public Opinion Appointed instead of elected Serve life terms Salaries cannot be reduced The Supreme Court controls its own docket – it doesn’t have to listen to all cases

Courts Independence Not Too Independent from Public Opinion They rely on others to enforce their decisions They can be impeached We do elect those that appoint or confirm the judges We can pressure Congress not to confirm We can pass amendments to control what decisions they can make

Courts Independence Controlling the Docket It’s mostly discretionary – they choose what cases They only hear about 1% of all cases that apply for SCOTUS to review them They will usually hear cases in which there are disagreements between levels of courts (state & Federal) They will usually hear cases when there is conflict between two Circuit Courts

Courts Independence Political Questions They will try to avoid “political questions” They only hear disputes about legal situations, not political ones The power of SCOTUS rests on its own legitimacy It needs both sides of the political spectrum to recognize its legitimacy It needs to be viewed as above the political process

Federal Courts SCOTUS Case Selection

Courts Selection Path of a Case Case starts in a court of original jurisdiction – (state court or District court) The case can be appealed to the Circuit Court Circuit Court hears an appeal & rules The SC Justices review the appeals coming from the Circuits they monitor The SC Justices issue a writ of certiorari to send the case up for review

Courts Selection Litigants Petition for Cert The petitioner files an outline of the facts & history of the case They must explain WHY the SCOTUS would want to review their issue & WHY the ruling of the Circuit Court was wrong Amicus Curiae briefs may also be filed to encourage the court to grant cert In reality – much of this work is handled by clerks Each justice gets the petitions from the Circuit Court they are in charge of

Courts Selection “At Conference” Only the 9 justices attend the meeting. Seating is by seniority Chief Justice prepares a “discuss list” of cases that they will debate the merits of Any justice can add a case from their Circuit to the discuss list They decide to issue “writs of certiorari”

Judges vote in the open, & try to sway each other Courts Selection Rule of Four SCOTUS will agree to hear the case if four of the nine justices agree to call it up Justices will meet in conference, and discuss cases they want to bring up Judges vote in the open, & try to sway each other The Rule of Four serves to protect the minority – a critical role of the courts

Courts Selection Writ of Certiorari A formal call for the lower court to “send up a case for review” The lower court needs to send all the relevant briefs & information up to SC The justices read all this ahead of oral arguments happening in court If you’re denied – you get a one sentence order from the Court that gives no explanation

Courts Selection Oral Arguments A typical case gets only one hour before the Supreme Court The lawyer for each side gets 30 minutes to present their legal arguments The justices already know all the info from the briefs The justices spend most of this time asking questions about the arguments to the lawyers

SCOTUS Justice Selection Federal Courts SCOTUS Justice Selection

Courts Justice Selection Federal Judges All federal judges are appointed by the president All federal judges must be approved by the Senate There is more scrutiny given to Supreme Court appointments than to Circuit judges or District level positions

Courts Justice Selection Senatorial Courtesy For practical purposes (save time, not debate every single judge) When the president is making a lower court appointment, he gives “courtesy” to Senators from his party in that state He tells the senator who he’s thinking about, and they basically approve or veto the recommendation In many cases they can even make recommendations of their own This is tradition & custom – it does not have to be followed

The president will get suggestions from the Department of Justice Courts Justice Selection SCOTUS Justices The president will get suggestions from the Department of Justice He’s most likely to appoint someone with a similar ideology – that person will make decisions the same way he would This allows the president’s ideology to have impact on policy for years after he leaves office. Liberal presidents nominate more liberal judges & conservatives do the same Doesn’t always work perfectly – judges can move from conservative to liberal

Courts Justice Selection Justice Characteristics Ideology is the single most important factor (ideology not party) Age – president is more likely to want to pick a younger judge – they can stay on court for a longer time Demographics – president may consider race, gender, background, region, religion Experience – a judge with a good track record is more likely to be confirmed

Courts Justice Selection Congress Characteristics President must consider the partisanship of Congress Opposite party in charge may be mean the president picks a moderate as a compromise The Senate usually confirms the president’s choice – they have only rejected 29 nominations all time

Judges don’t have political party allegiances – they have ideologies Courts Justice Selection Political Party Judges don’t have political party allegiances – they have ideologies The president needs to adjust his pick based on which party is in control of the Senate The president needs to consider how HIS party will react to his pick. He needs to keep them happy

Courts Justice Selection Confirmation Hearing The president’s nominee is sent before the Senate Judiciary Committee They will look at the voting record of the justice They will ask about the judge’s philosophy and stance on controversial issues This is called “vetting” The Senate Judiciary Committee will make a recommendation to the Senate to approve or deny the appointment

Federal Courts Opinions

A judge can sign on to any majority, concurring, or dissenting opinion Courts Written Opinions Writing Opinions After hearing oral arguments in a case, the judges will initially “vote” on the result The Chief Justice will assign one person from the winning side to write the majority They will spend time trying to convince their peers to “sign on” to the opinion People that have issues with the majority opinion can choose to write a dissenting opinion or a concurring opinion A judge can sign on to any majority, concurring, or dissenting opinion

Courts Written Opinions Majority Opinion One justice who was on the side with the most “votes” writes the majority They announce the official decision of the court which can serve as a precedent They need to explain the constitutional reasons for their decision After writing, they will give it to the other justices to try to get them to sign it. They’ll write to try to persuade their fellow judges to sign on

They explain why they think the majority opinion is incorrect Courts Written Opinions Dissenting Opinion One justice who was on the side with the fewest “votes” writes in dissent They explain why they think the majority opinion is incorrect They will also circulate their writing and try to get their fellow justices to sign on The dissent also provides important legal arguments and can serve as the basis for legal arguments in the future

Anybody can write a concurring opinion, as many as want to Courts Written Opinions Concurring Opinion A justice who agreed with the decision of the court but didn’t agree with the arguments of the majority can write a concurring opinion Anybody can write a concurring opinion, as many as want to The concurring opinion also provides important legal arguments and can serve as the basis for arguments in the future

Federal Courts Today’s SCOTUS

Courts Today’s SCOTUS Supreme Court Today There’s a close balance between liberals and conservatives on the court It’s also pretty balanced between younger and older judges Three women is the most women to have ever served on the Court at once They make $251,000 & Chief Justice makes $263,000

Associate Justice Samuel Alito 67 years old (George W Bush) Associate Justice Neil Gorsuch 50 years old (Trump) Associate Justice Elena Kagan 57 years old (Barack Obama) Associate Justice Sonya Sotomayor 63 years old (Barack Obama) Chief Justice John Roberts 63 years old (George W Bush) Associate Justice Ruth Bader Ginsburg 84 years old (Bill Clinton) Associate Justice Anthony Kennedy 81 years old (Ronald Reagan) Associate Justice Clarence Thomas 69 years old (George HW Bush) Associate Justice Steven Breyer 79 years old (Bill Clinton)

Courts Today’s SCOTUS Supreme Court Today Six justices are Catholic, three are Jewish (not reflective of USA) They are all from Harvard or Yale (not reflective of USA) 4 from NY, 2 from CA, one from NJ, Georgia, and Colorado

Courts SCOTUS Today Kennedy is called the “Swing judge” The conservative block Almost always votes together The liberal block Almost always votes together His vote is the most important on many issues RIP SCALIA

Bigly Ideas Policy Makers

Courts Wrap Up Independence of SCOTUS Writ of certiorari Factors in judge selection Opinions Focus on these things: