1. The Supreme Court Today
9.4
The Supreme Court Today
Deciding to Hear a Case
How Does a Case Survive the Process?
Hearing and Deciding the Case
Despite the tremendous power and influence the Supreme Court has over the policy and laws that affect Americans' lives, very few Americans have any real depth of knowledge about the Court. This may be due in large part to lack of interest, but the Court itself has taken great pains to maintain privacy and decorum. It does not televise hearings, for example, and utmost secrecy surrounds the deliberation process. In this section we will discuss how the Supreme Court decides to hear a case, and what happens next.

2. 9.4 TABLE 9.5 Can Americans Name the Justices of the Supreme Court?
Very few Americans can name a justice of the Supreme Court. This table shows exactly how few.
Source: © 2012 Findlaw & Thomson Reuters business.

3. 9.4 FIGURE 9.3 How Many Cases Does the Supreme Court Handle?
The modern Supreme Court is asked to hear over 7,500 cases per year (represented by orange bars); of these cases, it reaches a final decision in about one percent, or 80 cases (represented by red bars). This is about half of the total number of decisions the Court handed down 20 years ago.
Source: Administrative Office of the Courts; Supreme Court Public Information Office.

4. Deciding to Hear a Case 9.4 Writs of Certiorari and the Rule of Four
Cases must come from from U.S. Courts of appeals or other courts of last resort.
Cases must involve a federal question.
Role of Clerks
More than 7,500 cases are filed at the Supreme Court each term; approximately 80 cases are orally argued and decided. As you can see, only a fraction of cases requesting Supreme Court review are ever considered. [PREVIOUS NOTE STATED 7,000 / 75 CASES ?]
The Supreme Court controls its own caseload, deciding which cases it wants to hear and rejecting the rest. Litigants wanting their case to be heard send a petition for a writ of certiorari (Latin for "to be informed") to the Supreme Court, requesting a review of a lower court's ruling. Those petitions are sent first to the chief justice, and then to the other justices. Under the "Rule of Four," a case will get a hearing if at least four justices agree.
The Clerks of the Supreme Court are very important in this process. They generally graduate at the top of their class from top law schools. They review cases and make recommendations to their bosses. Since the Court started hiring more clerks for each justice, the length of opinions has increased as well.

5. 9.4 FIGURE 9.4 How Does a Case Get to the Supreme Court?
This figure illustrates both how cases get on the Court's docket and what happens after a case is accepted for review. A case may take several years to wind its way through the federal judiciary and another year or two to be heard and decided by the Supreme Court, if the justices decide to grant certiorari.

6. 9.4 Why are Supreme Court clerkships important?
Supreme Court clerkships are awarded to a small number of elite law school graduates each year. In addition to providing valuable experience at the Court, clerkships can open doors to opportunities in government and private practice. Justice Elena Kagan (right, seated with former Justice Sandra Day O'Connor) served as a law clerk to Justice Thurgood Marshall. She later went on to serve as White House counsel, Harvard Law School dean, solicitor general, and, ultimately, Supreme Court justice.
Chip Somodevilla/Getty Images

7. How Does a Case Survive the Process?
9.4
How Does a Case Survive the Process?
Federal Government
The Solicitor General
Conflicts Among the Courts of Appeal
Different interpretations
Interest Group Participation
Important social issues
So which cases tend to get a hearing? Among the cues are the following:
•The federal government is the party asking for review.
•The case involves conflict among the courts of appeals.
•The case presents a civil rights or civil liberties question.
•The case involves the ideological or policy preferences of the justices.
•The case has significant social or political interest, as evidenced by the presence of interest group amicus curiae briefs.

8. TABLE 9.6 Which Groups Participated as Amicus Curiae in Citizens United v. FEC (2010)?
9.4
This table shows the different groups that participated in the controversial Citizens United v. FEC case in 2010.

9. Hearing and Deciding the Case
9.4
Hearing and Deciding the Case
Oral Arguments
Questions asked and answered
The Conference and the Vote
Closed conferences twice a week
Writing Opinions
Dissenting opinions
After the Court accepts a case and each side has submitted briefs and amicus briefs, the oral arguments begin. Generally, attorneys are given half an hour to argue their case, including time required to answer questions from the bench. Court observers have tried to predict the ruling of a case based on justices' questions, but that is an imperfect art.
After arguments, the justices meet behind closed doors twice a week. They start each conference with a handshake. The chief justice begins the discussion of the case, and each justice speaks in order of seniority. Discussions are followed by a vote on the case.
Once a decision has been made, the opinion must be written. If the chief justice is in the majority, he will assign a justice to write the majority opinion. The opinion is important because it sets out the legal reasoning justifying the decision, and this legal reasoning becomes a precedent for deciding future cases. Justices who disagree with the majority may write a dissenting opinion. Justices who agree with the vote but not the reasoning may submit a concurring opinion.

10. 9.4 Interest groups often participate
in Supreme Court cases via this process.
Writ of Certiori
Amicus Curiae
Appeals to the Solicitor General
Launching a public interest campaign
What have you learned about how cases are decided by the Supreme Court? Please answer this brief question.

11. 9.4 Interest groups often participate
in Supreme Court cases via this process.
Writ of Certiori
Amicus Curiae
Appeals to the Solicitor General
Launching a public interest campaign
This means "friend of the court" and submitting a brief signals a group's interest in a case.

12. Judicial Philosophy and Decision Making
9.5
Judicial Philosophy and Decision Making
Judicial Philosophy, Original Intent, and Ideology
Public Opinion
Justices do not make decisions in a vacuum. They must follow the law of previous cases. But, as we will discover in this section, other legal and "extra-legal" factors can be observed in Supreme Court decision making. Those include justices' philosophy and ideology, public opinion, and what the original intent of the Framers is presumed to have been.

13. Judicial Philosophy, Original Intent, and Ideology
9.5
Judicial Philosophy, Original Intent, and Ideology
Judicial philosophy and ideology
Judicial restraint
Judicial activism
Strict constructionism
One of the primary issues concerning judicial decision-making focuses on what is called the activism/restraint debate. Advocates of judicial restraint argue that courts should allow the decisions of other branches of government to stand, even when they offend a judge's own principles. Because judges are not elected, they should leave policy making to the elected branches.
Judicial activism is the opposite: justices help create public policy through their decisions. The case Roe v. Wade, which liberalized abortion laws, is considered an example of judicial activism.
Those who support judicial restraint tend to agree that justices should be strict constructionists. In other words, justices should interpret the Constitution as the Framers wrote and originally intended it. As we will see, this is not realistically possible today.
Activity: Describe a case, either using a real case or a hypothetical one, perhaps associated with some local or national news headline. Split the class into two sections and assign one as an activist court, the other as a court practicing judicial restraint. Each group is to make a decision on the described case, using only those qualities associated with its assigned method of reaching decisions. How do the outcomes compare?

14. Public Opinion 9.5 Can check the power of the courts
Activist periods
May consider public opinion when issuing rulings
Korematsu v. U.S. (1944)
Public confidence in Court
Has ebbed and flowed
The relationship between the Supreme Court and public opinion can seem like a moving target. At times the Court appears to have heeded the call of public opinion, such as when, in 1936, it reversed many of its earlier decisions that had blocked President F. Roosevelt's New Deal programs.
But at times of war and other emergencies, the Supreme Court has decided cases that seemed to favor public opinion over constitutional principles. In Korematsu v. U.S., the Court seemed to bend to public fears during World War II when it upheld the clearly unconstitutional internment of Japanese Americans. Perhaps as a result of these actions, public confidence in the court has varied throughout its history.

15. 9.5
TABLE Do Supreme Court Decisions Align with the views of the American Public?
This table gives an example of the nexus of certain Court cases with public opinion.
Source: Lexis-Nexis RPOLL.

16. 9.5 Supporters of this philosophy
argue that the courts should stay away from policy-making.
Strict constructionism
Judicial activism
Judicial restraint
All of the above
Before we move on to the last section of this chapter, please answer this multiple-choice question about judicial philosophy.

17. 9.5 Supporters of this philosophy
argue that the courts should stay away from policy-making.
Strict constructionism
Judicial activism
Judicial restraint
All of the above
Supporter of this philosophy say the courts should leave standing the policy actions of other branches of government, even if they violate the Constitution.

18. Toward Reform: Power, Policy Making, and the Court
9.6
Toward Reform: Power, Policy Making, and the Court
Policy Making
Implementing Court Decisions
Many political scientists argue that all judges, whether they recognize it or not, make policy. The decisions of the Supreme Court especially have a great impact on American politics and policy. In this section, we will examine those impacts.

19. Policy Making 9.6 Civil rights issues Authority of the Court
Right to privacy
Equal rights for women, African Americans, and other minorities
Authority of the Court
While elected officials keep a close eye on the wishes of their constituents, it is safe to say that many policies we take for granted in the United States would not have come about without the support of the Supreme Court. These include the right to privacy and equal rights for women, African Americans, Hispanics, gays and lesbians, and other minority groups.
The Court has also helped set public policy in regards to its own authority. The Warren Court helped broaden the role of the Court as a public policy maker through its recognition of civil rights, and the Marshall court did the same through its claim of judicial review.

20. 9.6 Do unpopular Supreme Court rulings threaten the nation?
The Warren Court's broad expansions of civil and political rights led to a great deal of criticism, including a movement to impeach the chief justice. Here, two California billboards present contrasting views of Warren's performance.
Bettmann/Corbis

21. Implementing Court Decisions
9.6
Implementing Court Decisions
Judicial implementation
How judicial decisions are translated into public policies
Implementing population
Those responsible for carrying out the decision
Consumer population
Those directly affected by the decision
Once the court has ruled—especially if it has reversed an earlier court decision or an action by a branch of government—policy must follow in order to implement the decision. This is called judicial implementation. In considering judicial implementation, policy makers must be aware of the implementing population—those responsible for carrying out the decision, such as lawyers, judges, public officials, government agencies—and the consumer population. Those are people who might be directly affected by a decision.
Before judicial implementation can be carried out, the following must first be determined: does the implementing population understand the ruling? Will the implementing population actually follow the ruling? Is the consumer population aware of the rights that the decision grants or denies them?

22. 9.6 These are the people who are
directly affected by a judicial ruling
Consumer population
Implementing population
Interest group population
Judicial population
We just covered the term for this question. The correct choice represents the population that needs to know the rights that a Court decision grants or denies them. What is the correct choice?

23. 9.6 These are the people who are
directly affected by a judicial ruling
Consumer population
Implementing population
Interest group population
Judicial population
These are the people who are directly affected by a court ruling.

24. 9 Discussion Questions What role do the courts play in policy making?
Should public opinion be considered when the judiciary makes policy decisions?
What are some of the advantages and disadvantages of judicial activism?

25. 9 Further Review Listen to the Chapter Study and Review the Flashcards
Study and Review the Practice Tests