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involves re-examining cases that have already been handled in lower courts. Parties that lose at trial or on their initial appeals can petition the high court’s nine justices for a final review of the case. The justices agree to hear cases when they find a so-called “federal” issue to resolve: conflicting interpretations of federal laws, regulations or the U.S. Constitution. The justices get first crack at resolving only cases that raise questions beyond the jurisdiction of any lower court, such as disputes between states. (Think of arguments over water rights, for example.) The high court does not hold trials, with witnesses, evidence and a jury. Instead, lawyers argue their cases directly to the justices, first in written briefs and then during a live session. Once a case is heard, it can take anywhere from a month to six months for the justices to issue a decision. Their rulings are as final as it gets in the law: No other court can undo their decisions.
Nine justices form the highest court in the nation, and make decisions that affect all Americans. Here, we look at what goes on in the hallowed halls of the Supreme Court.
By Stephen Henderson, McClatchy Newspapers
vote, and come up with a final decision. The chief justice expresses his opinion first, then each justice, in order of seniority, weighs in. It is sometimes a lively debate, other times an orderly recitation. After everyone has spoken, the justices take a vote, and opinions are assigned based on the results. If the chief justice is among those voting with the winning side, he gets to assign who writes the opinion. If he’s on the losing side, the justice with the most seniority on the winning side gets to assign the majority opinion. The justices on the losing side will frequently write dissents. Once the opinions are finished, they’re circulated among all the justices, who may suggest edits or changes to the majority opinion. Sometimes at this stage, a justice in the majority finds himself more persuaded by a minority opinion, and switches his vote. That could result in a dissent becoming a majority opinion, or vice versa. The justices’ deliberations are secret, however, and they never explain how the decisions are reached.
Unlike other American courts, the U.S. Supreme Court has nearly free rein to decide which appeals it will hear, and which it will reject. The court’s jurisdiction is set by Congress, but within that jurisdiction, the justices themselves choose which disputes to resolve and which to ignore. The idea is that the court should reserve its judgment for only the most important matters, those involving fundamental questions about the Constitution or federal law. Each term, the justices receive requests to hear more than 8,000 cases filed throughout the country by people in all walks of life: high-powered lawyers representing big clients; death-row inmates writing out their appeals longhand from their cells; ordinary citizens trying to resolve disputes over their local school boards. The justices generally agree to full review of only about 80 of those cases each year; they also resolve another 20 to 40 summarily, without accepting briefs or hearing oral arguments. It generally takes four justices to agree to hear a case; in rare instances — such as some death-penalty appeals — five votes are necessary.
PETE SOUZA/CHICAGO TRIBUNE/MCT
Justice David Souter was nominated by George H.W. Bush, but became a liberal fixture on the Court.
According to federal law, the Supreme Court must begin each term the first Monday in October, and each session generally ends during the last week of June. During the session, they hear arguments approximately six days per month — two Mondays, Tuesdays and Wednesdays. They hear two cases on each of those days, then meet privately to discuss the arguments. They also meet most Fridays in private to discuss cases that have been argued and to decide which cases will be heard. These sessions are attended only by the nine justices; even clerks aren’t allowed inside. Tradition holds that the “junior justice,” the one with the least amount of seniority, must act as a gopher of
C O U R T E S Y O F T H E U. S . S U P R E M E C O U R T
Justices hear cases in the U.S. Supreme Court’s courtroom. Each term, the court receives more than 8,000 petitions to hear cases.
sorts. He or she answers the door if someone knocks, and gets coffee for the other justices. Justice Joseph Story (who was appointed to the court in the early 1800s) was junior justice for a record nine years and nearly seven months. The court generally announces opinions on Tuesday and Wednesday argument days, and releases “orders”
regarding which cases will be heard on argument Mondays as well as a third Monday each month. Opinions are announced in the courtroom by the justice who wrote the majority opinion, who also reads a short summary of the decision. In some cases, a dissenting justice feels so strongly about his or her disagreement that he or she also will read from the bench.
The justices use the briefs submitted and the question-and-answer sessions at oral argument to decide how they’ll vote in each case. After argument, they meet to discuss how they’ll
Because the court has an odd number of members, many cases are decided by a single-vote margin. And because the current membership of the court is split between more conservative and more liberal justices, the justice closest to the political middle is often described as holding the swing vote. As that justice goes, so goes the court. Particularly in socially charged cases — those involving issues such as abortion or affirmative action or medical marijuana — that swing vote becomes the center of attention for the press and interest groups that organize around court issues. The court doesn’t always have a swing voter; when one side has a prohibitive majority, for example, it can pretty much do what it wants. Before her retirement in 2005, Justice Sandra Day O’Connor was considered by many to be the court’s swing vote. O’Connor was a conservative, the first appointee by President Ronald Reagan. But on many hot-button social issues, she took a more moderate view and swung the court’s decisions in a more liberal direction. She was the “swing” vote in pivotal cases involving abortion and affirmative action, for example. With O’Connor’s departure and replacement by a more solidly conservative justice in 2006, the court’s proverbial middle was taken up by Justice Anthony Kennedy. Kennedy cast key votes in cases on affirmative action, free speech and abortion. With the 2009, seating of Justice Sonia Sotomayor and the recent nomination of Elena Kagan, the court’s dynamic shifts once again.
G A RY FA B I A N O / A B A C A P R E S S / M C T
U.S. Supreme Court justices (front row, from left) Anthony Kennedy, John Paul Stevens (retiring), Chief Justice John Roberts Jr., Antonin Scalia and Clarence Thomas. Back row, from left: Samuel Alito Jr., Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
The job of Supreme Court justice is one of the few that’s defined in the Constitution, but not accompanied by a list of qualifications. Justices, the Constitution says, are to be appointed by the president with the “advice and consent” of the Senate, and they shall serve “during good behavior,” which in practical terms means the rest of their lives. But there is no age requirement. And the Constitution doesn’t say the justices have to be judges, or even lawyers. Technically, the Constitution does not even require that justices be U.S. citizens. Throughout history, many of the justices have, indeed, been judges at
the time of their appointments. But many others have not been. John Marshall, perhaps the most important chief justice of the United States, was a Virginia congressman and secretary of state before he was appointed. Earl Warren, who led the court through the tumultuous 1960s, was governor of California. Chief Justice William H. Rehnquist, who died in 2005, had previously worked in the Department of Justice as chief counsel to the Attorney General. The current justices are an eclectic mix of personalities and judicial philosophies, but all were accomplished lawyers or judges before being appointed to the high court.
Justice Antonin Scalia, for example, is a strident adherent to the idea that the court should decide cases exclusively by trying to divine the original or “textual” meaning of the Constitution and federal laws. Justice Stephen Breyer, on the other hand, believes that the justices ought to merely consider original meaning in their quest to decide cases in a way that expands citizens’ role in democratic institutions. But both were legal academics, government lawyers and lower court judges before they were nominated to the Supreme Court. For the first time in many years, the court has no member who held elective office.