HGov: Supreme Court Case Process

Some cases begin at the Supreme Court because they fall under its original jurisdiction. However, the vast majority of cases reach the Court only as appeals from lower court decisions.

The main route to the Supreme Court is when a lower court petitions the Court for a writ of certiorari, an order to send up the records on a case for review. When cases come to the Court, the justices and clerks decide which ones are worthy of serious consideration, and the chief justice puts them on a “discuss list” for all the justices to consider. If four of the nine justices agree to accept the case, the Court will do so.

After the Court accepts a case, the lawyers on each side submit a brief. Parties who have an interest in a case’s outcome may also submit a written brief called amicus curiae. The justices listen to oral arguments from lawyers for each side of each case.

The Court then recesses and considers arguments in these cases. A majority of justices must be in agreement to decide a case.

The Court issues one of four types of written opinions, which are as important as the decision itself. An opinion may be unanimous. A majority opinion expresses the view of the majority of justices. A justice who agrees with the majority’s decision but for a different reason may write a concurring opinion. A dissenting opinion is the opinion of justices on the losing side in a case.

The most controversial cases decided by the Supreme Court are often those that involve judicial review. Nowhere does the Constitution mention the power of judicial review. In 1803, the Supreme Court took on that duty for the first time in Marbury v. Madison. In that case, the Court declared a portion of the Judiciary Act of 1789 to be unconstitutional. It thus established the power of the judiciary to review the constitutionality of legislative or executive actions. Over time, judicial review has become the judicial branch’s most important check on the other two branches. More than two centuries after the Court assumed this power, Americans are still divided about its proper use. On one side are supporters of judicial activism, and on the other are advocates of judicial restraint.

Judicial activism is based on the belief that the Court has both the right and the obligation to use its power of judicial review to overturn bad precedents and promote socially desirable goals. Liberals tend to be more supportive of judicial activism than are conservatives. They look to the Court to defend the rights of women and minorities, for example, when legislatures fail to act.

Advocates of judicial restraint hold that judicial review should be used sparingly, especially in dealing with controversial issues. Conservatives tend to be more supportive of judicial restraint than are liberals. In their view, elected representatives, not unelected judges, should make policy decisions.



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