Legislative Advocacy: Meet the Supreme Court
Dr. Elizabeth Lehto
The Supreme Court of the United States (often referred to by the acronym SCOTUS) leads the judicial branch of the federal government and is the highest judicial body in the country. Its main role is to be a guardian of the Constitution though hearing appeals cases and preventing laws that are unconstitutional. In doing so, the Supreme Court often decides on policies that affect the lives of millions of Americans.
Supreme Court Justices
The Supreme Court consists of nine justices: the Chief Justice and eight Associated Justices. Justices are nominated by the president and confirmed by the United States Senate. Once appointed, a Supreme Court Justice serves for life, barring resignation, retirement, or impeachment.
Choosing a Nominee
There are no age, education, profession, or citizenship requirements to be appointed to the Supreme Court. Therefore, a president can nominate any individual to serve. Many factors are taken into consideration when making a nomination, including experience, ethnicity, and gender. Past presidents have received a list of recommendations form the White House Counsel, the Attorney General, and lawyers in the Justice Department’s Office of Legal Counsel.
Most presidents choose an individual who broadly shares their ideological views. Presidents with more liberal views will tend to appoint liberal justices while presidents with more conservative views tend to appoint conservative justices. Some presidents have required that a nominee hold a specific position on a key issue in order to be considered for nomination. However, Justices’ leanings are not always predictable. For instance, Earl Warren was nominated by President Eisenhower with the expectation that he would make conservative decisions. Instead, Warren’s judgments have gone down as the most liberal in the court’s history.
Senate Consideration
Once the president nominates an individual, the Senate Judiciary Committee conducts a rigorous investigation into the nominee’s background, which helps to inform whether the Senate will support the nominee. The nominee is also reviewed by the American Bar Association’s Standing Committee on Federal Judiciary.
Hearings are held before the Senate Judiciary Committee, during which time the nominee testifies, takes questions, and verbally spar with committee members (particularly opponents). On average, these hearings last 60 days, but can stretch longer depending on how contentious the nominee.
About a week after the hearings adjourn, the Senate Judiciary Committee holds a vote and sends the nomination to the full Senate with positive recommendation, negative recommendation, or no recommendation at all. The nominee is approved by a majority vote by the Senate, with ties broken by the Vice President.
Once approved by the senate, the president issues a written appointment allowing the nominee to take the Oath of Office and the Judicial Oath.
Supreme Court Cases
The overarching goal of the Supreme Court is to make sure that federal law is the same across the country. The Supreme Court has both original and appellate jurisdiction.
Original jurisdiction: The Supreme Court is the first and only court to hear a case. These cases are limited to those involving disputes between states or disputes arising among ambassadors and other high-ranking ministers.
Appellate jurisdiction: The Supreme Court reviews the decisions of lower courts. Most of the cases heard by the Supreme Court are appeals from lower courts.
Parties who are not satisfied with the decision of a lower court must petition the Supreme Court to hear their case. This is done through a writ of certiorari, which is a request that the Supreme Court order the lower court to send up the record of the case for review.
Thousands of cases are submitted to the Supreme Court each year, but it only accepts about 80 cases a term. Each term begins on the first Monday in October and lasts until the first Monday in October of the following year. The court generally releases the majority of its decisions in mid-June.
Most Supreme Court cases fall into one of three categories:
Case of national importance, such as Bush v. Gore in 2000 (link: https://www.law.cornell.edu/supct/html/00-949.ZPC.html) when the court ruled there was no fair way to recount the votes in Florida in time for the state’s votes to be counted in the Electoral College, therefore deciding Florida’s election results would stand.
Lower court invalidates federal law, such as Gonzales v. Raich (link: https://www.law.cornell.edu/supct/html/03-1454.ZS.html), in which Raich challenged federal drug laws after agents destroyed marijuana plants she had been consuming for medical use. Circuit court ruled in her favor, deciding that she was compliance with state law authorizing use of medical marijuana. However, that ruling conflicted with federal law prohibiting marijuana use. The case was taken to the Supreme Court that ruled that homegrown production and use of marijuana can be criminalized, even if the sate allows its use for medicinal proposes.
Resolve split decision, such as Obergefell v. Hodges (link: https://www.law.cornell.edu/supremecourt/text/14-556) in which a ruling in Circuit Court banning same sex marriage conflicted in rulings in other Circuit Courts that upheld the right to same sex marriage. This created a split between Circuit Courts where federal law was applied differently in different states. The case was taken to the Supreme Court which ruled that the right to marry is guaranteed to same sex couples by the Fourteenth Amendment to the United States Constitution.
When a case is not accepted by the Supreme Court it does not mean that the Supreme Court agrees with the decision of the lower court, it simply means that the Court is choosing not to hear the case.
Briefs
Four of the nine justices must vote to accept a case. If the justices decide to accept a case, it is placed on the docket and the petitioner has a certain amount of time to write a brief putting forth his/her legal case concerning the issue. Once the petitioner’s brief is filed, the other party (known as the respondent) files a respondent brief.
After the initial petitions have been filed, the petitioner and respondent are permitted to file briefs responding to the other party’s position. With the permission of the court, groups that are interested in the case but do not have a direct sake in the case may file what is known as an amicus curiae brief providing their own arguments and recommendations for how the case should be decided.
Oral Arguments
Oral arguments in cases are hared from October through April. Typically, two cases are heard each day. These are arguments are open to the public.
During the oral arguments, lawyers for each party have 30 minutes to make their case. Most of this time is spent answering the Justices’ questions. The Solicitor General usually argues case in which the United States Government is a party. The Solicitor may also be allotted time to express the government’s interest in case where the government is not a party.
Conference
When oral arguments are concluded, the Justices decide the case at what is known as the Justices’ Conference. Typically, the first order of business at the Justices’ Conference is to discuss the week’s petitions for certiorari and deciding which cases to accept or reject. Afterwards, the justices discuss the cases that were heard since their last conference.
During this time, each justice has the opportunity to state their views on the case and raise any questions or concerns about the case. The Chief Justice makes the first statement, then each Justice speaks in descending order of seniority. When each Justice is finished speaking, the Chief Justice casts the first vote followed by each Justice in descending order of seniority, with the most junior Justice casting the last vote.
After the votes have been tallied, the Chief Justice (or the most senior Justice in the majority if the Chief Justice is in the dissent) assigns a Justice in the majority to write the opinion of the Court. If a Justice agrees with the outcome, but not the majority’s rational for it, that Justice may write a concurring opinion. Any Justice may write a separate dissenting opinion.
When there is a tie in the vote (which may occur if a seat is vacant or a Justice had to recuse from a case), the decision of the lower court stands.
Opinions
Opinions of the court are typically handed down by late June/early July on the last day of the Court’s term. With the exception of this deadline, there are no rules concerning when decisions are released.
Typically, decision that are unanimous are released sooner than those that have dissenting opinions. Some unanimous decisions may he handed down as early as December, while some controversial opinions may not be handed down until the last day of term, even if they were heard in October.
A majority of Justices must agree to all the contents of the court’s opinion by “signing onto” the opinion before it is publicly delivered. The Justice in charge of writing the opinion must carefully take into consideration the comments and concerns of the others who voted in the majority in order for enough Justices to sign onto the opinion. On rare occasions a dissenting opinion may later become the majority opinion because one or more Justices switch their votes after reading the draft opinions.
Opinions are not considered the official opinion of the court until it is delivered in open court or made available to the public.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final. Decisions can be altered only by a constitutional amendment or by a new ruling of the Court.
Final Thoughts
The Supreme Court leads the judicial branch of the federal government as the highest judicial body in the country. Its main role is to be a guardian of the constitution, hearing appeals cases and preventing laws that are unconstitutional. Most Supreme Court cases fall into one of three categories: case of national importance, lower court invalidating federal law, and to resolve split decisions. Opinions of the court are typically handed down by late June/early July on the last day of the Court’s term. When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by constitutional amendment or by a new ruling of the Court.
Elizabeth Lehto, D.O.
University of Louisville | UL · Department of Pediatrics | Doctor of Pediatric Emergency Medicine
Dr. Elizabeth Lehto is a Pediatric Emergency Medicine Attending at Norton Womens and Children’s Hospital. Dr. Lehto attended Midwestern University Arizona College of Osteopathic Medicine and completed her residency and fellowship at the University of Louisville.
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