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Judiciary of the United States

Process of Supreme Court Cases

Supreme Court Process through Oral Arguments

After four justices of the Supreme Court agree to hear a case, it enters the court's agenda. Lawyers for both sides present written arguments laying out their case and are questioned by the justices in a brief oral argument.

The Supreme Court is often called the "court of last resort," and for good reason. The court is the final judge of questions of constitutionality and statutory interpretation. The nine justices—one chief justice and eight associate justices—who make up the Supreme Court choose which cases to hear each session. The justices receive several thousand requests each year. From those, they agree to hear fewer than 100 or so that undergo the full process described here; the justices dispose of another 100 or so without going through that full process. Besides original jurisdiction cases, the Supreme Court typically chooses to hear appeals involving unresolved constitutional questions, national issues, and conflicts between lower courts. The court's decision to not hear a case does not constitute a ruling on the merits of the case but simply lets the decision of the the lower court stand.

Before a case reaches the Supreme Court, it typically follows a long process. The petitioner, or the party disputing the ruling of the lower courts, asks the Supreme Court to hear the case. The mechanism is to petition for a writ of certiorari, a formal order from a higher to a lower court asking for a case record to be sent for review. Given the thousands of petitions received by the Supreme Court, the justices typically agree to divide the cases among themselves. The justices then divide the cases among their law clerks. The clerks provide the justices with background information on each case, its possible significance, and a recommendation on whether to accept the case for review. The final determination is made at weekly conferences of the justices. Only four justices need to vote in favor for the court to issue the writ; though the majority can later choose to exercise the option of dismissing the case as improvidently granted, this rarely occurs.

Once the court agrees to hear a case, the petitioner has a certain number of days to submit to the court a brief, or formal written argument, of 50 pages or less. The respondent, or other party in the case, must also submit a brief. Each party is next asked to submit a shorter brief in response to the other party's initial brief. An outside party that may be impacted by the case—including the federal Justice Department or one or more state governments—may weigh in on the issue. It can file an amicus curiae brief, a "friend of the court" brief submitted by an outside party presenting information and recommendations on a court case.

After reviewing the briefs, the justices schedule oral arguments for the case. The justices hear oral arguments for an average of two cases per day. The petitioner and the respondent typically each have 30 minutes for oral arguments. Justices may use the oral arguments as an opportunity to ask questions to clarify issues in one party's brief.

The court's term runs from the first Monday in October through early summer, when the justices recess. Generally, the period during which justices hear oral arguments ends in April; the justices use the rest of the term to issue any remaining decisions.

Supreme Court Decision Process

After considering the specifics of the case and relevant prior law, the justices vote to decide the case, with the majority determining the result. A member of the majority writes a majority opinion stating the decision and legal rationale. Other justices may write opinions agreeing with the decision for different reasons or dissenting from the decision.

Once oral arguments have concluded, the justices decide how to rule on the case within the week. Often, justices discuss the arguments, briefs, and merits of a case with their clerks before going into conference, held two days a week, with fellow justices. While in conference, each justice speaks about the case, including any concerns or questions he or she might have. After discussion, the justices vote, with the order of voting following the seniority of the justices. The court's decision—the action of a majority of justices to find in favor of one party over another—is determined by a majority vote. In rare cases in which one seat on the court is vacant or if a justice recuses him- or herself from the case (which means the justice sees a reason it is inappropriate to take part in a particular decision), there can be a tie vote. In the event of a tie, the Supreme Court honors the decision of the lower court.

The chief justice or the justice with the greatest seniority in the majority assigns a justice to write the majority opinion, which is the written explanation of a court's decision stating the legal principles on which it is based. The justice can decide to take on writing the majority opinion personally rather than assigning it to another justice in the majority. In addition to the facts of the case, the justices give weight to precedent, or a decision in an earlier case involving similar points of law. In doing so, they apply stare decisis, which means "let the decision stand," the legal principle that a question decided in court one way should be decided in the same way in all cases involving the same issue. While the justices may reject precedent and overturn an earlier ruling, they are typically reluctant to do so. Reliance on precedent helps establish continuity in the legal system. A justice in the majority may choose to write a concurring opinion, a written explanation of why a justice agrees with the majority opinion but not the primary legal rationale behind it. A concurrence might agree with the majority opinion in part and differ only on one point. If the decision is not unanimous, the chief justice or the justice with the greatest seniority in the minority assigns a justice to write the dissenting opinion, a written explanation of why a justice does not agree with the majority opinion. Additionally, other justices who do not agree with the decision can write their own dissenting opinions stating a different rationale for the dissent.

While the majority opinion must be released by the time the court recesses for summer, some decisions may be handed down sooner than others. Unanimous decisions are often made public more quickly than those with multiple opinions. A majority opinion is not final until a majority of justices sign it and it is officially announced. Though unusual, justices in the majority can change their mind after reading the majority opinion. Therefore, depending on the ratio of the original vote, it is theoretically possible for a dissenting opinion to suddenly become the majority opinion. Former Justice Robert Jackson, who served on the court from 1941 to 1954, said that he had sometimes changed his mind after reading a majority opinion that did not convince him with its reasoning. He did not say if those votes changed the outcome of the case, however.

The legal rationale behind the majority opinion becomes the interpretation of the law that lower courts are to follow in subsequent cases. Dissenting and concurring opinions, while representing the views of a minority of Supreme Court justices, can be extremely powerful in their own right. Over the years, some dissenting opinions have attracted substantial attention. This has been especially true with cases before the court that have involved already-controversial issues, such as slavery or Congress's use of the commerce clause of the Constitution. Dissenting opinions have often presented a different way of interpreting sections of the Constitution, which can then influence both public opinion and, sometimes, later court decisions. For example, the Supreme Court upheld the legality of wiretapping in the 1928 case Olmstead v. United States. Justice Louis Brandeis condemned the decision in a dissent. His dissent was referenced in 1976 when the court declared wiretapping a violation of the 4th Amendment protection against unreasonable search and seizure in Katz v. United States.