Supreme Court Procedures
How does the Supreme Court select, hear and decide cases?
Why does it matter who writes the Court’s majority opinion?
The Supreme Court’s annual term runs from the first Monday in October through whenever the Court’s nine Justices deliver the opinions on all the cases considered during the term, usually between the end of May and late June. Since 2020, the Court hears between 55 and 70 cases during a typical term.1
The Court receives cases by several means. Article III, section 2, grants the Court original jurisdiction (the responsibility to serve as the trial court) in matters involving ambassadors, foreign ministers and consuls; whenever the federal government has a dispute with a state; and when two or more states have a legal dispute that can only be resolved by the courts.2 Despite having original jurisdiction in these matters, the Court retains some discretion and may decide not to take a case. In a typical year, few cases arrive at the Court under its original jurisdiction.
The most common way for a case to reach the Court is for the Court to issue a writ of certiorari, or “grant cert” for short.3 For a writ to be issued, the losing party in an appellate court must file a brief in which the petitioner argues that the issue involved in the case is significantly important beyond the petitioner and has major implications for the entire country.4 The respondent then files a brief that argues the Court should not grant cert. The Chief Justice may also invite amicus curæ (friend of the court) briefs.5 The Justices, when in session, hold conferences twice weekly and review requests for writs. The votes of four justices are required to accept a case. This is referred to as the rule of four.
The Court also considers accepting cases that arise when a state’s highest court upholds a state law or gubernatorial action in the face of a challenge that the state law or action violates the US Constitution. The losing party in the case would file a brief requesting a writ of certiorari. As an example, see the case of Gideon v. Wainwright discussed in footnote 4. Florida’s highest court upheld a decision by a county prosecutor to deny an indigent, Clarence Gideon, free legal counsel, despite Gideon’s claim that the lack of counsel violated his Sixth Amendment right to counsel.
Finally, the Court usually accepts cases from two or more appellate courts that have decided cases on the same legal question but decided their cases differently. This is known as circuit split. To leave one part of the country operating under one interpretation of a national law or presidential action while another region operates under a diametrically opposed interpretation would be dysfunctional. Again, the losing parties at the appellate courts may decide to request that the Court grant cert and accept the case. The Court combines their cases and hears them jointly. For example, several appellate circuit courts have ruled several of President Trump’s executive orders unconstitutional, while other circuits have allowed them to take effect. We await the Court’s resolution of these circuit splits.
Once the Court agrees to take a case, however the case may arrive, it is placed on the Court’s docket (schedule) for oral argument during the term. The Court holds oral arguments for two consecutive weeks, referred to as a Court session, followed by a two-week recess each month from October to April. In a typical session day, the Court hears two cases beginning at 10:00 am, with the average case taking an hour. The Chief Justice determines how much time the Court will devote to each case based on the case’s complexity and national significance.6 The allotted time is divided evenly between the two parties, with the petitioner, the party that requested the hearing, speaking first, followed by the respondent. If the federal government is a party in the case, the Solicitor General represents the US. During oral arguments, no video is recorded, but journalists are present as well as a court sketch artist. Recently, the Chief Justice has permitted audio recordings of the arguments, which are made available on the Court’s website shortly after the argument.
Along with scheduling the oral argument, the Court’s administration informs the parties that their briefs are due by a certain date in advance of the case’s argument. A brief is a written argument that summarizes the facts, legal issues, and the party’s arguments in the case as concisely as possible. Precedent cases that support the party’s position are cited. If necessary, the brief may include sociological, psychological, economic, scientific and other non-legal evidence to bolster its argument. Ultimately, the brief’s objective is to convince the Justices to find for the party based on the legal reasoning contained therein. The Chief Justice may also invite other interested parties to submit amicus curæ briefs that offer additional perspectives and arguments and can number between one and 140 for any case.7
Before oral arguments, each Justice meets with his or her law clerks to discuss the cases to be heard and to debate the pros and cons for how the Justice should vote.8 The Justices differ on the work that they assign their clerks. Clerks write “bench memos” for each case; these summarize the issues, suggest questions for the Justice to pose, and consider other issues that may arise if the case were decided in a particular way. Additionally, clerks conduct research, read and summarize cert petitions, and also write first drafts of opinions or edit drafts of opinions written by their Justices.
Precisely at 10:00 AM, the Justices enter the courtroom, and the Chief Justice announces the case. The petitioner’s attorney speaks first for two minutes, summarizing the argument after which the Justices ask questions, usually in order of seniority and without interruption by other Justices. When the petitioner’s time has expired, the respondent’s attorney speaks for two minutes followed by the Justices’ questions.9 The petitioner’s attorney will then offer a response to the respondent’s argument for no more than five minutes.
Oral argument serves several purposes. It provides an opportunity for the Justices to ask questions. These questions may not be about the details of the case, which they have already studied, but rather about the consequences of the Court’s decision if it were decided using the attorney’s legal reasoning. The Justices press the lawyers to precisely articulate the rule of law they are seeking and to discuss its implications.
With the conclusion of the day’s oral arguments, the Justices return
to their respective chambers where they review the day’s cases with
their clerks and prepare for a conference.
Conferences are held on Wednesdays and Fridays while in
session. Only the Justices attend; no law clerks or other
staff are present.10
Monday’s cases are discussed on Wednesdays while Tuesday’s and
Wednesday’s cases are debated on Fridays. The Chief Justice
calls the conference to order, and all the Justices shake
hands.11
The first order of business is the consideration of cert petitions
received since the previous conference. The Justices vote
in order of seniority, beginning with the Chief Justice. If
the petition receives four affirmative votes, cert is
granted.
The next order of business is the discussion of the
cases, with the Chief Justice speaking first and stating his
opinions on how and why the case should be decided. When he
concludes, other Justices may ask questions, then in order of
seniority, the other Justices speak and share their
opinions. Once all the Justice have spoken and asked
questions, the Justices cast their votes, with the Chief Justice
voting first with the other Justice voting in order of
seniority.12
Votes cast in conference are not binding; that is, Justices can and
sometimes do change their votes during the process of drafting the
Court’s majority opinion. If there is a tie vote, then the
decision of the lower court stands. A tie vote is possible
when Justices are absent due to illness or death, or if Justices
decide to recuse themselves from the case because they have some
conflict of interest in the case.
After the vote, the Chief
Justice, if in the majority, assigns the writing of the opinion to
himself or to another Justice; when the Chief Justice is in the
minority, the most senior justice in the majority assigns the
opinion. When the Chief Justice is in the minority, he may
take the responsibility for the minority opinion or assign it to
another Justice.
Why is the assignment of the majority opinion so important? The Justice writing the opinion may do so in a way that employs a constitutional interpretation and legal reasoning that other Justices in the majority may disagree with, even as they agree with the decision. This often results in some Justices in the majority writing concurring opinions, which are opinions that state the Justice (or Justices — a concurring opinion may have more than one Justice sign it) agrees with the outcome but for different reasons as explained in the concurring opinion. When a Court decision is announced with a divided Court, that is, any decision that is not unanimous, and the majority opinion is accompanied by one or more concurrent opinions, the issue decided by the majority has not been definitively settled.13 Interest parties on the losing side of the decision are likely to bring new cases to the Court using the arguments contained in the concurring opinions to entice Justices to switch their votes. Or in a more extreme outcome, one or more majority Justices may change their votes, and abandon the majority. If the changed votes create a new majority, then another Justice is selected to write a new majority opinion. Thus, selecting a Justice to write the majority decision is critical to holding the majority together and having all the majority Justices sign the opinion.
Once the majority opinion draft is completed, the authoring Justice circulates it to all the other Justices, including those in the minority. At that point, any other Justice can decide to “join” the opinion, can request changes to the opinion before joining, or can decide to write a concurring opinion. As the majority opinion circulates, any dissenting or minority opinion will also circulate. Sometimes, the Justice assigned to write the minority opinion waits to read the majority opinion before writing, but sometimes the Justice may have the draft prepared for circulation when the majority opinion draft is circulated, thereby hoping to persuade other Justices to change their votes. The circulating dissenting opinion may also undergo revisions based on feedback offered by other members of the minority.
On the day that a case’s decision is announced, the entire decision with concurring and minority opinions is printed and released to the public. The majority opinion is also announced from the bench by its author. Depending on the Justice, the author may read parts of the decision. Similarly, the author of the minority opinion may ask the Chief Justice for permission to read parts of that decision.
- In the years following WWII, the Court often heard between 120 and 150 cases, but the number began declining after 2000. ⇧
- The Supreme Court serves as the trial court in such disputes because it is a neutral venue to settle the states’ problem. It would be unacceptable for one state’s court to host the trial, as any verdict favoring the host court’s state would be viewed as biased. ⇧
- The word certiorari means “to be more fully informed”, which attempts to capture the Court’s purpose in accepting a case to make a more informed decision. By some estimates, about 80% of the cases heard by the Court arrive by way of “cert”. The Court has a great deal of discretion in the matter of granting cert, a tradition begun during William Howard Taft’s tenure as Chief Justice from 1921 – 1930. ⇧
- For example, in 1961, Clarence Gideon was arrested for a felony in Florida and requested a lawyer to be paid by the state because he was an indigent. Florida denied his request. He was found guilty at his trial, and he personally filed an appeal to the state appellate court, which denied his claim that he didn’t have a fair trial because he did not have counsel. Gideon again personally appealed to the Florida Supreme Court, which also rejected his appeal. Gideon then drafted his own brief requesting that the Court take his case, because Florida should have provided him, a person charged with a felony, with a lawyer, as guaranteed under the Sixth Amendment’s right to counsel. The Court accepted the case, assigned Gideon an attorney, Abe Fortas, and the Court, in Gideon v. Wainwright (1963), ruled that the Sixth Amendment applies to the states, and that Gideon should have been afforded a lawyer. The case was remanded to a Florida court for a retrial, and Gideon, represented by Mr. Fortas, was acquitted of the charge. ⇧ ⇧
- The number of amicus briefs filed and their persuasiveness is known to influence the Justice’s decisions to grant cert. ⇧
- In its modern history, the case with the longest time for oral arguments is Brown v. Board of Education II at 13.25 hours in 1955. Other major cases with exceptionally long arguments were South Carolina v. Katzenbach at seven hours, and Miranda v. Arizona at six hours, both in 1966. ⇧
- There were 140 amicus briefs filed in the Dobbs v. Jackson’s Women’s Health Organization (2022), which overturned Roe v. Wade. ⇧
- Each Justice may hire three to four clerks each session. Competition for a clerkship is intense, and receiving a position is widely considered a prestigious achievement that leads to a position with a major law firm or in the federal or a state’s government. Clerks are usually recent law graduates, with most coming from the very best schools. ⇧
- Some oral argument practices changed when the Justices held sessions remotely during the pandemic. Several of those changes were retained since the resumption of in-person sessions. During remote arguments, lawyers had two minutes at the beginning of their argument time to make introductory remarks without interruption, followed by the Justices asking questions in order of seniority without interruption. Previously, the lawyers would begin speaking, and a Justice almost immediately interrupted the presentation with a question. Other Justices followed with questions, often interrupting one another, leaving the attorneys unable to complete their opening statements. ⇧
- There is a Court tradition that the least senior Justice must serve as the steward for the other eight during conferences. This Justice answers the door should someone knock, gets water, coffee, etc. for the other Justices, and performs any other task requested by a more senior Justice. ⇧
- The handshake tradition began with Chief Justice Melville W. Fuller, who served from 1888 until his death in 1910. ⇧
- The current tradition of voting by seniority began after Chief Justice Warren Burger’s tenure ended. He served from 1969 to 1986. It was his practice to vote last and cast his vote with the majority even if he didn’t agree with the majority’s decision. This strategy allowed him to assign the majority opinion to be written by a Justice whose opinion might fracture the majority, allowing Burger to change his vote and create a new majority that favored his true position on the case. He could then assign the decision writing to himself or to a Justice whose opinion would hold the new majority together. The public first learned of Burger’s handiwork with the publication of The Brethren: Inside the Supreme Court by Scott Armstrong and Bob Woodward in 1979. Chief Justice Burger was not widely admired by his fellow Justices because of this strategy. ⇧
- Perhaps an extreme example is Sackett v. EPA (2023) where all nine justices agreed on the outcome but for different reasons. There were four separate concurring opinions in addition to the majority opinion. In an earlier case, Regents of the University of California v, Bakke (1978), the Court’s vote was eight to one, with a majority opinion and four separate concurring opinions. ⇧