Supreme Court Procedure
Overview of Supreme Court Procedure
The Supreme Court of the United States is the highest federal court, exercising discretionary review over cases from lower federal courts and state courts presenting substantial federal questions. The Court’s procedures are governed by its own Rules, federal statutes, and long-standing traditions. Understanding how cases reach and are decided by the Supreme Court is essential for any appellate practitioner.
The Court consists of nine Justices: one Chief Justice and eight Associate Justices. The President appoints Justices with the advice and consent of the Senate, and they serve during good behavior. The Court’s jurisdiction and procedures have evolved since its first term in 1790, but its essential function — interpreting the Constitution and federal law — has remained constant.
How Cases Reach the Supreme Court
The Supreme Court’s appellate jurisdiction is almost entirely discretionary. Cases reach the Court through three primary routes. The most common is a petition for writ of certiorari seeking review of a decision from a United States Court of Appeals or a state’s highest court. Direct appeals, which the Court must hear, are available in limited circumstances such as cases under the Voting Rights Act, the Campaign Finance Act, and certain antitrust statutes. The Court also has original jurisdiction over disputes between states, though these are rare and typically involve boundary disputes, water rights, or other interstate controversies.
Approximately 7,000 to 8,000 petitions for certiorari are filed each Term, but the Court grants full review (plenary review) to only about 70 to 80 cases annually, yielding roughly 60 to 70 signed opinions. The Court also decides a number of cases summarily without full briefing and argument.
The Certiorari Process
A petition for certiorari must be filed within 90 days of the entry of judgment in the lower court. The petition identifies the questions presented, summarizes the facts and procedural history, and argues why the case warrants review. The respondent may file a brief in opposition, and the petitioner may file a reply. Interested non-parties may file amicus curiae briefs supporting or opposing certiorari.
The questions presented are the most important part of the petition. They must be precise, concise, and framed to highlight the legal issue. The Court will not consider issues not presented in the petition. The argument section must demonstrate that the case meets the criteria for certiorari, including circuit conflict, importance of the question, or conflict with Supreme Court precedent.
The Court grants certiorari when at least four of the nine Justices vote to hear the case (the rule of four). The Court is most likely to grant review when there is a conflict among the circuits on a federal question, when a state court decision conflicts with federal law, or when the case presents a question of exceptional national importance.
The cert pool is a system in which law clerks from several Justices review petitions and prepare memoranda recommending whether certiorari should be granted. Currently, most Justices participate in the cert pool. Justice Alito and Justice Gorsuch do not participate in the cert pool.
Merits Briefing and Argument
After granting certiorari, the Court schedules the case for briefing and oral argument. The petitioner files a merits brief, the respondent files a response, and the petitioner may file a reply. Amicus curiae briefs are commonly filed on the merits, providing additional perspectives and analysis from interested parties, industry groups, academics, and government entities.
The merits brief must address the questions presented, the facts, the legal arguments, and the reasons why the lower court erred. The brief must comply with strict formatting and length requirements. The cover must be a particular color depending on the party’s status: petitioner (light blue), respondent (light red), amicus (green), and reply (yellow).
Oral argument is a critical component of Supreme Court practice. Each side typically receives 30 minutes to present arguments and respond to questions. The Justices actively question counsel, often focusing on the implications of proposed rules and hypothetical scenarios. Oral arguments are open to the public and are recorded and transcribed.
Oral argument is not a speech; it is a conversation with the Justices. Most of the time is consumed by answering questions from the bench. The first words from a Justice often come within seconds of the advocate beginning to speak. Effective advocates anticipate questions, concede weaknesses, and redirect to their strongest arguments.
Conference and Decision-Making
After oral argument, the Justices meet in private conference to discuss and vote on the case. The Chief Justice presides and speaks first, followed by each Associate Justice in order of seniority. A majority vote determines the outcome. If the Chief Justice is in the majority, the Chief assigns the opinion writing; otherwise, the senior Associate Justice in the majority assigns the opinion.
The conference is the most secretive aspect of the Court’s work. No law clerks, staff, or observers are present. The Justices discuss the case, express their views, and vote. The Chief Justice circulates an “assign” list indicating who will write the opinion.
Opinion Writing
The assigned Justice drafts an opinion circulating it among the other Justices for comment. Justices may join the opinion, suggest changes, write separately, or dissent. The negotiation and revision process can take months, with multiple drafts circulated and revised. Majority opinions are binding precedent; concurring and dissenting opinions are not binding but may influence future cases.
Concurring opinions agree with the result but offer different reasoning. Dissenting opinions disagree with the majority and may signal the direction of future legal developments. Justices may also join the opinion in part and write separately.
The majority opinion author must secure at least five votes (including the author) for the opinion to be controlling. Plurality opinions, joined by fewer than five Justices, have reduced precedential effect. The Court rarely issues per curiam opinions (unsigned opinions of the Court) on the merits, reserving them for cases where the law is clearly settled.
Issuance of Opinions
Opinions are issued from the bench in open court on designated opinion days (typically Monday through Wednesday during sitting weeks). The Supreme Court’s decisions are final and can be altered only through subsequent Court decisions, constitutional amendment, or, in limited circumstances, congressional action.
The Court’s opinions are posted on its website immediately upon issuance. The syllabus preceding the opinion summarizes the holding but is not part of the official opinion. The opinion itself, including all concurrences and dissents, constitutes the authoritative decision.
Original Jurisdiction Cases
The Supreme Court has original jurisdiction over cases affecting ambassadors, consuls, and public ministers, and cases in which a state is a party. In such cases, the Court typically appoints a special master to hear evidence and make recommendations, with the Court ultimately deciding any disputed issues. These cases are rare but often involve significant controversies such as water rights, boundary disputes, and state sovereignty.
The Supreme Court’s Term
The Supreme Court Term begins on the first Monday in October and usually ends in late June or early July. The Term is divided into sittings (two-week periods for oral argument) and recesses (periods for opinion writing). Orders, including grants and denials of certiorari, are issued throughout the Term.
The Term concludes with the issuance of the remaining opinions before the summer recess. The Court typically schedules its most controversial and significant cases for decision at the end of the Term. The orders list released on certiorari days indicates which petitions were granted, denied, or disposed of in other ways.