The Supreme Court

HOW THE SUPREME COURT SELECTS CASES

The Supreme Court begins its annual session on the first Monday in October and ends late the following June. Every year, there are literally thousands of people who would like to have their case heard before the Supreme Court, but the justices will select only a handful to be placed on the docket, which is the list of cases scheduled on the Court’s calendar. The Court typically accepts fewer than 2 percent of the as many as ten thousand cases it is asked to review every year.“Supreme Court Procedures.” United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (March 1, 2016).

Case names, written in italics, list the name of a petitioner versus a respondent, as in Roe v. Wade, for example.Roe v. Wade, 410 U.S. 113 (1973). For a case on appeal, you can tell which party lost at the lower level of court by looking at the case name: The party unhappy with the decision of the lower court is the one bringing the appeal and is thus the petitioner, or the first-named party in the case. For example, in Brown v. Board of Education (1954), Oliver Brown was one of the thirteen parents who brought suit against the Topeka public schools for discrimination based on racial segregation.

Most often, the petitioner is asking the Supreme Court to grant a writ of certiorari, a request that the lower court send up its record of the case for review. Once a writ of certiorari (cert. for short) has been granted, the case is scheduled on the Court’s docket. The Supreme Court exercises discretion in the cases it chooses to hear, but four of the nine Justices must vote to accept a case. This is called the Rule of Four.

For decisions about cert., the Court’s Rule 10 (Considerations Governing Review on Writ of Certiorari) takes precedence.”Rule 10. Considerations Governing Review on Certiorari.” Rules of the Supreme Court of the United States. Adopted April 19, 2013, Effective July 1, 2013. http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf. The Court is more likely to grant certiorari when there is a conflict on an issue between or among the lower courts. Examples of conflicts include (1) conflicting decisions among different courts of appeals on the same matter, (2) decisions by an appeals court or a state court conflicting with precedent, and (3) state court decisions that conflict with federal decisions. Occasionally, the Court will fast-track a case that has special urgency, such as Bush v. Gore in the wake of the 2000 election.Bush v. Gore, 531 U.S. 98 (2000).

Past research indicated that the amount of interest-group activity surrounding a case before it is granted cert. has a significant impact on whether the Supreme Court puts the case on its agenda. The more activity, the more likely the case will be placed on the docket.Gregory A. Caldeira and John R. Wright. 1988. “Organized Interests and Agenda-Setting in the U.S. Supreme Court,” American Political Science Review 82: 1109–1128. But more recent research broadens that perspective, suggesting that too much interest-group activity when the Court is considering a case for its docket may actually have diminishing impact and that external actors may have less influence on the work of the Court than they have had in the past.Gregory A. Caldeira, John R. Wright, and Christopher Zorn. 2012. “Organized Interests and Agenda Setting in the U.S. Supreme Court Revisited.” Presentation at the Second Annual Conference on Institutions and Lawmaking, Emory University. http://polisci.emory.edu/home/cslpe/conference-institutions-law-making/2012/papers/caldeira_wright_zorn_cwzpaper.pdf. Still, the Court takes into consideration external influences, not just from interest groups but also from the public, from media attention, and from a very key governmental actor—the solicitor general.

The solicitor general is the lawyer who represents the federal government before the Supreme Court: He or she decides which cases (in which the United States is a party) should be appealed from the lower courts and personally approves each one presented (Figure). Most of the cases the solicitor general brings to the Court will be given a place on the docket. About two-thirds of all Supreme Court cases involve the federal government.“About the Office.” Office of the Solicitor General. The United States Department of Justice. http://www.justice.gov/osg/about-office-1 (March 1, 2016).

The solicitor general determines the position the government will take on a case. The attorneys of his or her office prepare and file the petitions and briefs, and the solicitor general (or an assistant) presents the oral arguments before the Court.

Image A is of Justice Thurgood Marshall. Image B is of Donald B. Verrilli.
Thurgood Marshall (a), who later served on the Supreme Court, was appointed solicitor general by Lyndon Johnson and was the first African American to hold the post. Donald B. Verrilli Jr. (b) was the forty-sixth solicitor general of the United States, starting his term of office in June 2011 when Elena Kagan left the post to join the Supreme Court.

In other cases in which the United States is not the petitioner or the respondent, the solicitor general may choose to intervene or comment as a third party. Before a case is granted cert., the justices will sometimes ask the solicitor general to comment on or file a brief in the case, indicating their potential interest in getting it on the docket. The solicitor general may also recommend that the justices decline to hear a case. Though research has shown that the solicitor general’s special influence on the Court is not unlimited, it remains quite significant. In particular, the Court does not always agree with the solicitor general, and “while justices are not lemmings who will unwittingly fall off legal cliffs for tortured solicitor general recommendations, they nevertheless often go along with them even when we least expect them to.”Ryan C. Black and Ryan J. Owens. “Solicitor General Influence and the United States Supreme Court.” Vanderbilt University. http://www.vanderbilt.edu/csdi/archived/working%20papers/Ryan%20Owens.pdf (March 1, 2016).

Some have credited Donald B. Verrilli, the solicitor general under President Obama, with holding special sway over the five-justice majority ruling on same-sex marriage in June 2015. Indeed, his position that denying homosexuals the right to marry would mean “thousands and thousands of people are going to live out their lives and go to their deaths without their states ever recognizing the equal dignity of their relationships” became a foundational point of the Court’s opinion, written by Justice Kennedy.Mark Joseph Stern., “If SCOTUS Decides in Favor of Marriage Equality, Thank Solicitor General Don Verrilli,” Slate.com. April 29, 2015. http://www.slate.com/blogs/outward/2015/04/29/don_verrilli_solicitor_general_was_the_real_hero_of_scotus_gay_marriage.html. With such power over the Court, the solicitor general is sometimes referred to as “the tenth justice.”