 1000s are appealed to the S Court › Only ~100 actually heard › Most denied b/c justices either agree w/ lower court decision or believe the case doesn’t involve a significant point of law › Some argue the limited number of cases accepted limits Court’s ability to create public policy  Many cases accepted may be disposed in brief orders – returned to lower court for reconsideration b/c of a recently decided related case

 Cases presented to S Court for possible review may be appealed through: › Writ of certiorari – order by the Court (when petitioned) directing a lower court to send up records of a case for review; usually requires need to interpret law or decide a constitutional question › Certificate – lower court may ask S Court about rule of law or procedures in specific cases

 Accepted cases must meet rule of four – 4 justices must agree to hear the case › An appeal is heard (granted writ of certiorari) based on 5 criteria  A court has made a decision that conflicts w/ precedent  A court has come up with a new question  One court of appeals has made a decision that conflicts w/ another  There are inconsistencies between courts of different states  There is a split decision in the court of appeals

 For a case that makes it to the S Court: › Lawyers for each party file a written brief – a detailed statement based on relevant facts and citation from previous cases › Interested parties may also be invited to submit amicus curiae briefs (“friends of the court”), supporting or rejecting the arguments of the case › Oral arguments allow both sides to present positions during a 30 minute period  Justices may interrupt lawyers during this time, raising questions or challenging points of law

 Justices use law clerks to research info presented oral arguments and briefs  Justices meet in private conferences to consider cases heard in oral argument, w/ chief justice presiding  Informal poll determines how each justice is leaning in a case

 Decision in a case is explained in a written statement – opinion  If voting w/ majority, chief justice selects who will write the opinion › If voting w/ the minority, senior associate justice of the majority selects who will write it

 The types: › Majority opinion – majority of the justices agree on the decision and its reasons › Concurring opinion – justice who agrees w/ majority opinion, but not the reasoning behind the decision › Dissenting opinion – justice/s who disagree w/ majority opinion  Majority opinions become precedents – standards/guidelines to be followed in deciding similar cases in the future (setting public policy)

 S Court has authority to interpret constitutional status of the laws of Congress  1803 – Marbury v Madison › Marbury one of Adams’ appointees that claimed Madison hid his appointment papers  Wanted the S Court to demand his job, using a law Congress created, giving the S Court the power to make such a ruling › Marshall ruled the law that gave the S Court that power was unconstitutional & couldn’t give such an order to the president  Established power to interpret the words of the Constitution

 Using 14 th Amendment to apply Bill of Rights to state laws › Originally applied only to federal laws/cases/actions (Barron v Baltimore, 1833)  14 th Amendment requires all states to provide all citizens w/ due process & equal protection › 20 th Century: S Court rulings resulted in these being applied to the states – incorporation doctrine › Not all rights have been incorporated – since not all have been challenged in federal courts

 Rights in Bill of Rights that have been “incorporated” › Privacy › Free speech › Free press › Freedom of religion › Assembly and petition › Association › Search & seizure › Exclusion of evidence › Self-incrimination › Confront witnesses › Impartial jury › Speedy trial › Right to counsel › Public trial › Prohibition of cruel & unusual punishment

 Roger Taney Court ( ) Antebellum / Civil War Era › Some feel critical rulings contributed to the Civil War  Dred Scott decision (1857) that slaves were property & voided Missouri Compromise › Issue of trying Southern sympathizers in the border states in a military court allowed › Established right of president to take away civil liberties guaranteed by Constitution during a national emergency

 New Deal Era › S Court overturned some New Deal programs › FDR proposed “court packing” to add more justices to the court – more supportive of New Deal › Plan didn’t pass – but 2 justices started voting in favor of New Deal programs (called “the switch in time to save nine”)

 Warren Court ( ) › Termed “most liberal court ever” › Chief Justices Earl Warren › Actively expanded definition of civil rights & liberties  Example cases:

 Burger Court ( ) › Chief Warren Burger appointed by Nixon returned S Court to more conservative ideology › Roe v Wade › Regents of the University of CA v Bakke › U.S. v Nixon – Nixon didn’t have executive privilege in the criminal proceeding

 Rehnquist & Roberts Courts (1986-present) › Conservative courts – limited, but didn’t reverse decisions of more liberal courts  Abortion – Planned Parenthood v Casey  Affirmative action

 When S Court interprets meaning & constitutionality of laws, playing role in policymaking › Through judicial review › Setting legal precedents › Overturning decisions of lower courts  Informal rule of policymaking: stare decisis (let the decision stand) › Based on custom of making judicial rulings based on decisions in earlier, similar cases

 Judicial Activism (judicial intervention) › S Court should play active role in determining national policies › Advocates applying Constitution to social & political questions, esp. where constitutional rights have been violated or unacceptable conditions exist  Example cases:

 Judicial Restraint › Court should avoid taking initiative on social & political questions › Operate strictly w/in limits of Constitution & upholding acts of Congress unless acts clearly violate specific provisions of the Constitution › Involves limited use of judicial powers › Advocates a more passive court, allowing executive & legislative branches to lead policymaking

 Liberals tend to support the following: › Broad interpretations of the Elastic Clause › Broad interpretations of civil rights acts and laws › Pro-choice decisions › Strict limits on the separation of church & state › Affirmative action programs to end discrimination

 Conservatives tend to support the following: › Stricter limits on the use of the Commerce Clause › Limited uses of “necessary & proper” › More local & state control over civil rights questions › Pro-life decisions › Community standards for free speech and obscenity › Affirmative action as a form of reverse discrimination › Community limits to lifestyle choices

 Ways judiciary is insulated › Judges & justices may serve for life › Not elected  Ways judiciary answers to the public: › Judges & justices may be impeached and removed by Congress › Past records of opinions and actions are used to evaluate judges for their appointments › Congress can react to unpopular decisions by leading the charge to amend the Constitution