The Modern Supreme Court: How it Works

How Does a Case Reach the Supreme Court? Criteria For Any Case Must be an actual dispute (No hypotheticals) The Party bringing the case must have standing 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 Opinion This 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) Opinion A 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) 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 positions Deciding 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. 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. 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 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. 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.” 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 opinions Is the most vocal in questioning opponents during oral agruments Liberal Moderate Conservative

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