By Jennifer Nicoll Victor, Ph.D., George Mason University
How does the Supreme Court decide to hear a case? How does it grant cert? And, what happens after the Supreme Court agrees to hear a case? Did you know there are several steps that are taken before, during, and even after the hearing of a case. Read on to know more.
Deciding to Grant Cert
When deciding to whether or not grant cert, meaning that the case will be heard, the Supreme Court operates according to the ‘rule of four’. In other words, if four of the nine justices on the Supreme Court agree to hear a case, then cert is granted. Notice that it only takes a minority of justices to agree to hear the case.
In practice, the way this works is that the parties of a case submit their legal arguments in the form of a brief, which is what the document is called. There is a physical document, or petition, that circulates with each brief. As soon as four justices sign on to the petition, then cert is granted, and the case gets scheduled on the Court docket.
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Common Law System
So, what happens after the Supreme Court grants cert on a case? The United States follows a legal tradition known as common law, in which, the primary purpose of a court is to provide interpretations of the law. When the Court applies an interpretation of the law to a particular legal question that has come before it, the Court creates a precedent.
In the common law tradition, this process of precedent setting is like forming a policy. When the Court issues a decision, it sets a precedent that has the force of law such that any future cases must follow the legal standard set by the precedent.
The Court may, or may not, schedule a case for oral arguments. At oral arguments, all nine justices sit at ‘the Bench’ and listen to attorneys from each side argue their case.
Oral Arguments and Conference
At the Supreme Court level, this part of the process is fairly unstructured. Justices are known to interrupt presenting attorneys and ask questions, or pose hypothetical scenarios for the attorneys to consider, or ask the attorneys to offer reasoning to support a particular claim that a justice is interested in, even if it is not the one the attorney prepared in their brief.
After oral arguments, the justices hold a meeting called a conference, where all nine of them will talk about the case and they’ll take an initial vote on the merits of the case. This conference vote is not the Court’s decision on the case; rather, it’s the means by which the Court determines which justices are in the majority and which are in the minority.
Once they know this, it’s often up to the most senior justice on the majority side to assign one particular justice to write the opinion of the Court. If the chief justice is in the majority, he may write the opinion or assign an associate justice to do so.
If the chief justice is not in the majority, often the longest serving justice in the majority has some rank in determining who will write the opinion of the Court.
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The Majority Opinion
The opinion of the Court, sometimes also called the “decision” of the Court or the ‘majority opinion’, is drafted and circulated among all the justices. Those who had initially voted with the majority at the conference stage will typically see the opinion first and offer their feedback.
Once the authoring justice is satisfied, then all the justices again have the opportunity to decide if they will sign on to the majority opinion of the Court, or side with the minority. The justices come back together to take a final vote on the merits of the case. This is the final vote of the case that is reported publicly.
At this point, all the justices have the opportunity to offer concurring or dissenting opinions. Only the majority opinion of the court has legal authority and can be cited in future cases as being part of the precedent set by the case. However, sometimes a justice will vote with the majority, but have a slightly different legal reasoning or argument than the one laid out in the majority opinion.
When this happens, the justice can offer a concurring opinion that articulates this alternative reasoning. A concurring opinion is public and part of the record of the case, but it has no legal authority. It can only be authored by a justice who votes with the majority.
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Alternatively, a justice might vote against the majority opinion and seek to explain why. In this case, the justice can write a dissenting opinion. Like a concurring opinion, a dissenting one carries no legal authority but is a public part of the record of the case. Only a justice who votes against the majority opinion can offer a dissenting opinion.
To muddy the waters a bit, justices can join one another’s dissenting and concurring opinions, or they can join only part of an opinion. This can sometimes get confusing when justices sign on to a majority opinion, for example, but then also join part of a dissenting concurring opinion.
Common Questions about the Working of the Supreme Court
When deciding whether or not to grant cert, the Supreme Court operates according to the ‘rule of four‘. That is, if four of the nine justices on the Supreme Court agree to hear a case, then cert is granted.
In a common law system, the primary purpose of a court is to provide interpretations of the law. When the Court applies an interpretation of the law to a particular legal question that has come before it, the Court creates a precedent.
In the conference, justices talk about the case and take an initial vote on the merits of the case. This conference vote is not the Court’s decision on the case; rather, it’s the means by which the Court determines which justices are in the majority and which are in the minority.