INTRODUCTION
So far in my blogs I’ve found it easy to zero in on what’s ugly and wrong about politics and politicians.
But doing the lengthy research necessary for today’s blog, I ended up deeply impressed with and proud of the Supreme Court of the United States. In the first few years of the 1800s, men with brilliant minds and common sense began to establish the day to day operations of the Supreme Court.
Seeking to learn the nitty gritty mechanics of how the Supreme Court of the United States (hereafter using the acronym SCOTUS) operates, I found former William H. Rehnquist’s book: The Supreme Court in a revised and updated, 2002 edition. It contains some “heavy reading” that is necessary due to the solid and detained information presented about those always interesting, and relevant nitty gritty details. And Rehnquist’s book is engaging, thorough, and very authoritative.
There are several other books I read to be sure I was getting accurate impressions of SCOTUS and the justices’ personalities, and these books are listed at the end of this blog.
THE JOB OF THE SUPREME COURT
It is the job of the Supreme Court of the United States (SCOTUS) to interpret and decide the law as found in the Constitution and any federal law based on the Constitution.
It was not long after the founding of America that in 1803 the SCOTUS Chief Justice John Marshall wrote in the case of Marbury v. Madison that:
- “It is emphatically the province and duty of the Judicial Department to say what the law is. . . The judicial power of the United States is extended to all cases arising under the Constitution.”
- Chief Justice Marshall had to put Thomas Jefferson and the Executive Branch of Government into its place because Jefferson was ignoring the Judicial Branch of Government.
- Marshall wrote the opinion of the Supreme Court, with all the other justices concurring. He defined the four issues at stake; he fully and clearly laid out the law governing all the issues; and he showed why the Executive Branch’s stand was inconsistent with itself logically.
- The opinion Marbury v. Madison in 1803 gave SCOTUS the credibility and power it needed to take its rightful place as one of the three, essential branches of government—the other two being the Executive Branch (headed by the President) and the Legislative Branch (Congress).
- I encourage you to read the two and one-half pages of Marshall’s brilliantly written logic. It’s well written, well worth the effort to read, and you can be proud of understanding something so important! It can be found online. Google Marbury v. Madison.
HOW ARE 100 CASES OUT OF 1000s OF APPEALS TO SCOTUS SELECTED TO BE HEARD?
There is a well-thought-out process, called certiorari, for picking the approximately 100 cases heard by the Supreme Court in any given year. I will lay out a summary of the certiorari process, but I won’t hereafter use that word. Hopefully you’ll recognize that word and know what it means if you see it in future reading about SCOTUS.
The typical reason for requesting SCOTUS to get involved is that the petitioner (the one asking their case to be heard) has lost their case in a federal court of appeals or in a state supreme court.
Each justice has three or four legal clerks, who are recently graduated attorneys; they read the background information on the case and assess whether it would be usefully considered by SCOTUS. SCOTUS mostly takes cases which are important, not to just one plaintiff, but broadly important to creating and maintaining the laws needed by all Americans.
When a new case arrives, then a legal clerk writes a memo containing the analysis and recommendations on whether that case should be selected and heard by the justices.
- Each justice reads his share of the clerk-written memos and indicates whether, later on in this process, he will vote to grant or deny the petition for the case to be heard and decided by SCOTUS.
- If four or more justices believe the petition has merit and appropriateness, then that petition will be discussed in a conference of the justices. According to Rehnquist, the cases ending up discussed at conference are those in which: (1) there have been conflicts between other courts; or (2) the legal issues are of general importance; or (3) a serious wrong decision has been made in the case. Cases with one or more of these factors would likely go to conference (Rehnquist, 2001).
- Importantly, the purpose of the Supreme Court is not to insure justice to every person going through the court systems—because it would not be possible. Moreover, since over a hundred years ago, there have been federal district courts and federal appeals courts in addition to state courts and state appeals courts. So, litigants do have for their case both their original court and an appeals court, which should be sufficient.
THE SCOTUS STEPS ON THE PATH FOR ARRIVING AT ITS CASE FINDINGS AND CONCLUSIONS
Now I will summarize and describe what happens in a case after the certiorari process has selected that case to be heard and decided by SCOTUS.
Step 1 is Justices Learning About the Upcoming Case
Any case heard by SCOTUS is A REALLY BIG DEAL.
A tremendous amount of legal work by the parties has already produced elaborate, written plans for presenting the case to SCOTUS. And the nine justices will have read the background information on the case, including the memos from their law clerks.
Step 2 is Oral Arguments
The attorneys for each party will have 30 minutes to argue their case in front of the nine justices. Oral arguments are open to the public, but with very limited seating. Transcripts and audio recordings of the arguments are available.
The attorneys will not talk much about evidence because the focus of SCOTUS is on the law itself. Chief Justice Rehnquist wrote, “The Supreme Court of the United States does not generally review evidentiary matters, and so the only questions before us in a given case are pure questions of law.” And Rehnquist also said, “A good lawyer should be able to make his necessary points in such a case in one half hour (Rehnquist, 2001 page 242).”
Rehnquist says that most judges come prepared for oral arguments by having read background material on the case, but he adds, “A judge who has not prepared at all for oral argument might be more “open-minded,” but it would be the open-mindedness of ignorance, not of impartiality (Rehnquist, 2001, page 242).”
Step 3 is Conference
In the conference room, the nine justices alone, without their clerks or any other staff, share their prepared opinions on the cases they heard in oral arguments earlier in the week. During the conference the door is literal guarded so that no outside influences intrude and disrupt the very organized process of discussion.
The justices are all seated, ordered by seniority, at a long conference table. They share their opinions starting from the Chief Justice on down to the least senior justice. The justices don’t interrupt each other and there is usually not a lot of discussion about the facts of the case. The major purpose isn’t to argue about the facts, but to argue about what the law should dictate and to determine whether a majority of the justices can agree on findings. Most of the justices try to help reach a majority opinion. That is, a majority would be 5 of the 9 justices in agreement.
The Chief Justice usually takes time to summarize the main issues of the case and as each justice talks there is less and less that needs to be said. By the time the most junior justice has a chance to speak, Rehnquist wrote, “[I]t will be evident that a majority of the Court has agreed upon a basis for either affirming or reversing the decision of the lower court in the case under discussion (Rehnquist, 2001, page 254).
At the end of the conference t Chief Justice confirms with the other justices his count of how each is likely to vote.
Step 4 is the Assignment of Which Justice Will Write the Majority Opinion
If the Chief Justice is part of the majority opinion in the case, he will choose whether or not he writes the majority opinion or assigns it to someone else in the majority; but if the Chief Justice is not in the majority then the senior justice associate justice in the majority will assign the opinion’s author.
In addition to the majority opinion there are often dissenting opinions and concurring opinions. A justice who voted with the majority might write a concurring opinion to emphasize a specific aspect of the case or to further reveal his particular concerns. A dissenting opinion is written by a justice who did not vote with the majority and who also feels strongly enough that he wants to formally wight out why he disagrees with the majority.
When draft majority opinions and dissents or concurring opinions are written, they are circulated among the justices. Justices read and comment back and forth to clarify or modify their opinions so their sometimes very complex opinions will be clearly understood. Supreme Court opinions are part of federal law and influence American law far into the future.
In reading Rehnquist’s book, along with majority opinions and dissents, I’ve learned that in SCOTUS the dissenting thoughts and personal and legal opinions are welcomed. Justices discuss their differing opinions and perspectives. They might invite one another to join an opinion, but most of the justices do not exert personal pressure upon one another. An example of a justice who does exert personal pressure is justice Antonin Scalia; but at the same time, when he wasn’t in his SCOTUS role, he enjoyed socializing with fellow justices—even ones he made harsh comments toward in his dissents.
When all the editing of drafts is completed, the final legal opinions are published on the SCOTUS website. Everyone can know the outcome of the case. Legal opinions from courts indicate winners and losers on serious matters. Legal opinions are necessarily much different from personal opinions. This is a foundational distinction necessary for understanding what the role of SCOTUS is and is not.
CONCLUSION
In the last two chapters of Rehnquist’s book, The Supreme Court, he displays his awareness of the ways justices can be biased and how the Court’s procedures and traditions minimize, but can’t completely eradicate bias. He discusses how SCOTUS is influenced by the people of America through the concerns of their Congressional representatives.
In a future blog I will reveal the many pathways by which certain voting blocks insert inappropriate influences into the SCOTUS.
Rehnquist was a highly respected Chief Justice even by persons who didn’t agree with him on the issues. I feel Rehnquist’s leadership has been a strong contribution to the many honorable qualities of SCOTUS. However, I don’t believe very many Americans know enough about SCOTUS and Rehnquist to appreciate his contributions.
These resources and books were used for this blog and recommended for your political science reading pleasure:
The Supreme Court by William H. Rehnquist, 2002. This book is detailed both about personalities and SCOTUS procedures. I had to read through some chapters more than once to understand how the procedures fit together. Your efforts will be well worth it.
Great Decisions of the U.S. Supreme Court edited by Maureen Harrison and Steve Gilbert, 2003. Easy reading. A lot can be learned quickly from this book.
Out of Order: Stories from the History of the Supreme Court by former SCOTUS Justice Sandra Day O’Connor, 2013. Easy reading. She was a seriously professional justice and her woman’s perspectives have been very beneficial to our country.
Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice by Joan Biskupic, 2005. Book has 338 pages in narrative and 81 pages of notes, bibliography and index. Reader can learn lots on what made her such an important swing voter. This book could serve well as a college textbook!
The U.S. Supreme Court: A Very Short Introduction by Linda Greenhouse (distinguished journalist and Supreme Court correspondent), 2012. I’ve read many of these Short Introduction books and highly recommend them. They’re all about 125 pages and very well written.
The Supreme Court: The Personalities And Rivalries That Defined America by Jeffrey Rosen, 2006.
Find more information to explore at: https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States
WORKS CITED
For complete references, see the relevant page on the powertomyvotes.com website.
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