Johnson (2004) demonstrates that, during conference, the justices clearly pick up on issues briefed by the parties and on issues discussed during oral arguments. In addition to the briefs, the justices sit for oral arguments. The … Policy oriented justices know that if they are to attain their goals they must take those cases they believe will lead to their preferred outcomes and reject those that will not.” The key for them, then, is that justices can use this rule to make “strategic calculations throughout the decision making process” (p. 121). The problem with this argument is that the public aspect to which the chief refers is only the end product. Recall that the Supreme Court has the judicial power to interpret the law. The court defines the power of the president. While Murphy did not systematically test his theory, others have done so. Supreme Court Chief Justice John Roberts addressed students at the University of Alabama Law School about the history of the U.S. Supreme Court. Once the Supreme Court grants review in a case the parties file legal briefs to convince the justices how to decide. As such, advocates sometimes spoke for many hours over multiple days. Her term for this is “pragmatic.”. Other codified rules are found in Article III of the Constitution; these include the Court’s jurisdiction to hear certain cases,8 the requirement that a party must have standing (Flast v. Cohen ) to be heard in the Supreme Court, and that a case must be justiciable before the Court will consider ruling on it.9. Many of the same players who influence whether the Court will grant cert. 7. 24. For appeals that the Supreme Court decides to retain, cases are assigned to one of four decisional tracks in order to tailor the decision-making process to the needs of each case. The conference. Litigant and amicus briefs serve two broad purposes: to provide information to the Court, and to set the bounds of policy space from which legal opinions can be drawn. Although short on supporting evidence, some argue that Marshall wrote opinions “even in cases where he dissented” (Schwartz, 1993, p. 152). 2. Both sides have 30 minutes to speak. At the same time, while the number of cases granted review increased dramatically through the late 1970s this number has fallen just as precipitously between then and the present day. The Court agreed and in an opinion written by Justice Stewart, argued that the public does not possess a right to attend criminal trials. First, it acts as a sharp constraint on majority tyranny at the Court’s agenda-setting stage. 13. As Justice Brennan (1973) put it, choosing cases is “second to none in importance.” It also clearly worries at least one former justice. Both Justice Blackmun and Justice Brennan left their Court papers to the Library of Congress. Rather, because five justices must usually agree on a decision to set precedent justices must pay particular attention to the preferences, and likely actions, of their immediate colleagues. George Grow was the editor. Scholars have emphasized for decades that conference votes are only the tip of the iceberg for the business the justices conduct (see, e.g., Epstein & Knight, 1998). Second, the central debate concerned specific aspects of policy, and not simply a decision to reverse or affirm the lower court’s ruling. At this point, no justice is bound by her stated policy preference or vote at conference; she instead has four options. The result is that Rule of Four cases ultimately receive treatment similar to cases granted review with five or more votes. Indeed, it is clear that decisions made at this stage of the process have a great deal to do with the decisions the justices make on the merits of a case. For example, many of America’s founders accepted slavery. No additional effort or response is necessary from the author when a justice immediately agrees to join his opinion. In short, a majority opinion author must craft a sufficiently high-quality opinion that captures the median justice in order to prevent potential dissenting opinions from gaining traction. Keeping in mind that a majority opinion author must write an opinion that pleases at least four other members of the Court, the task is best described as a dynamic and malleable process whereby justices strategically maneuver in an attempt to satisfy their policy preferences (Maltzman, Spriggs, & Wahlbeck, 2000). This example highlights two key aspects of the opinion-writing process. In fact, there has been a five-fold increase in the number of petitions submitted between 1935 and 2015. Start studying 8 steps of supreme court decisions. Decisional Tracks. Finally, there is mounting evidence that, during oral arguments, justices foreshadow how they will decide (Shullman, 2004; Roberts, 2005; Johnson, Black, Goldman, & Treul, 2009; Black, Wedeking, & Johnson, 2012). Beyond the debate between legal scholars and justices, the Rule of Four has drawn scorn from the mass media as its incompatibility with majority rule has come to light in death penalty cases (Liptak, 2007). The modal category is “join” (Maltzman, Spriggs, & Wahlbeck, 2000). The chief is often considered first among equals (Stevens, 2012) but has some power at several points during the Court’s decision-making process. Wahlbeck and his colleagues also find evidence that the decision to join a majority opinion is a strategic choice as well (1998). “The Supreme Court defines the distinctions between church and state … The Supreme Court decides how you’re treated and what happens to you and what your rights are should you be charged with a crime… The Supreme Court defines your rights if, for example, you are a racial or religious or ethnic minority and you feel as though you are being discriminated against, the Supreme Court defines how your life will be. Supreme Court justices are policy-oriented strategic decision makers (Epstein & Knight, 1998; Eskridge, 1991a, 1991b; Ferejohn & Weingast, 1992; Gely & Spiller, 1990), which means their decisions are constrained by a host of factors (Maltzman, Spriggs, & Wahlbeck, 2000; Epstein & Knight, 1998; Johnson, 2004; Black & Owens, 2012; Black, Wedeking, & Johnson, 2012). Perry and Carmichael (1985–1986) take the question of case selection a bit further. The attitudinal model of Supreme Court decision-making suggests that justices are unconstrained in their ability to vote for their most preferred policy outcomes because they enjoy life tenure (Segal & Spaeth, 2002). 11.Other justices write concurring or dissenting opinions (optional). In contrast, with the exception of one hour set aside for litigants to present oral arguments in most cases it decides, and the public announcement of its decisions, the work of the U.S. Supreme Court is conducted almost completely outside of the public’s eye.3 As a result, the Court’s decision-making process is largely opaque, and therefore the public knows very little about how the justices reach the decisions that affect every part and every citizen of the United States. For example, Epstein and Kobylka (1992) examine legal change in the jurisprudence of abortion and death penalty cases. With respect to the latter point, scholars have offered some answers, albeit not theoretically satisfying ones. Distinguished Teaching Professor, Political Science and Law, University of Minnesota, Contentious Politics and Political Violence, Political Values, Beliefs, and Ideologies, Agenda-Setting Process in the U.S. Supreme Court, The Rules that Govern Supreme Court Briefs. No, the answer is not the president. In other words, they argue that if the Court frequently ignored its own legal precedents its credibility as a judicial institution might be questioned, and it could potentially lose legitimacy—its main source of power. The rules surrounding these briefs on the merits are discussed along with the research that seeks to explain the extent to which written arguments affect the decisions justices make. that, “Opinion authors’ actions are shaped by the interplay of their own policy preferences and the actions of their colleagues” (p. 312). But the most significant check on the Supreme Court is executive and legislative leverage over the implementation and enforcement of … In other words, although the chief justice is constrained by norms, like equitable distribution of assignments, he has the power to choose who will articulate the Court’s opinion and the lens through which a case will be decided.28. This is not, however, how the majority opinion turned out. The dead list included cases that were not going to be discussed or voted on by the justices. Oyez.org makes these sessions available at the end of each week during the Court’s term. In many ways, he was a “giant” of the Court, as many of his obituary writers are stressing. Recall that the Supreme Court has the judicial power to interpret the law. A decade later, Chief Justice Hughes reiterated Justice Van Devanter’s response to the congressional concern that the Court may not take cases important for the law because of the justices’ discretion over their docket. This consistency indicates justices pursue specific policy goals, and rarely waver from doing so. 30. As a further example, the new interpretation of the commerce clause laid down in Wickard v. Beyond the discussions about the specific issues the justices must decide, conference is important because how the justices vote determines who will ultimately write the majority opinion in a case. The three prongs of this model are considered. The point is that for at least the past 80 years a minority of the justices has controlled the Court’s agenda. In other words, because justices do not face election or retention, and because they usually do not have higher political ambitions, they can vote for their most preferred outcomes without consequence. They are right to note (1995, p. 22) that this number would probably be higher had they also had access to more than just Brennan and Marshall’s papers for this study. On May 8th Chief Burger circulated a dissenting opinion, and also declared he would sign onto Stewart’s dissent with Rehnquist following shortly after. The final tenet of our account suggests that, although justices are goal-oriented and consider their colleagues’ preferences when making decisions, they must also account for the institutional context within which they decide cases (Slotnick, 1978; Danelski, 1978; Maltzman & Wahlbeck, 1996). Decisions on the Merits: Conference Discussions, The Importance of Conference Discussion and Votes, https://doi.org/10.1093/acrefore/9780190228637.013.98, Emotions, Oral Arguments, and Supreme Court Decision Making, Pardon the Interruption: An Empirical Analysis of Supreme Court Justices’ Behavior During Oral Arguments, Second Day of Hearings on the Nomination of Judge Roberts, Chief Justice Roberts Worried about ‘Impact’ of Cameras in SCOTUS, Agenda Setting and Case Selection on the U.S. Supreme Court. The day marks the anniversary of the U.S. Supreme Court's 1973 abortion ruling in Roe v. Wade. These discussions serve two purposes—to choose cases from the discuss list to set for future arguments and to vote on the cases that have already been argued. (2005) analyzed how often each justice passed on an initial vote in a sample of cases decided during the Burger Court. In short, while scholars do not yet have a full picture of what transpires during conference, these studies provide insights that have, until the past decades, eluded scholars and Court watchers alike. Out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court Building will be closed to the public until further notice. Do Oral Arguments Affect Justices’ Decisions? Currently, there are nine Justices on the Court. Normally, a state supreme court has the last word on state laws. For instance, Stevens (1983) argues that the Rule of Four comes into play in about 25% of all cases that make the discuss list. It is against this backdrop that the U. S. Supreme Court heard arguments last month in United States Fish & Wildlife Service v. Sierra Club. Beyond the information they provide to the justices, there is evidence that the quality of oral arguments forwarded by attorneys during these proceedings affects justices’ votes (Johnson, Wahlbeck, & Spriggs, 2006). As noted, it takes four votes for the Court to hear a case. “The lawyers who are making the arguments stand very close to the justices. This law established the circuit courts of appeals and codified that no right of appeal to the Supreme Court existed. As such, a preference cycle could exist whereby a case was continually granted and then dismissed (Riker, 1982). The chief justice made this comment during a C-SPAN forum on cameras in the courtroom. The petitioner’s reply brief is not to exceed 6,000 words and should have a yellow cover. Indeed, scholars should focus on attorneys’ language during the arguments as well as in the briefs they submit to the Court (see, e.g., Corley, 2008). The docketing statement also helps the Supreme Court determine which cases should be assigned to the Court of Appeals. Litigants may request extensions on these time frames; however, “an application to extend the time to file a brief on the merits is not favored” (Rule 25.5). His tenure as the junior associate justice is one of the longest in history. Institutions are the rules (either formal or informal) that structure interactions between social actors (Knight, 1992). There are three main models of the judicial decision-making that explain how judges come to a solution: legal, attitudinal and strategic. Of the 7,000 to 8,000 cert petitions filed each term, the court grants certiorari and hears oral argument in only about 80. That policy is the main goal of Supreme Court justices is neither a new nor a controversial idea. The Supreme Court does not advise on policy decisions before ruling on a case. However, the lasting contribution of the decision emerged from the Supreme Court’s conclusion that the Constitution gives Congress a general and broad power to tax and spend in support of the general welfare. 29. Johnson (2004) offers such insight; he provides a breakdown of issues briefed in a random sample of 75 Burger Court civil liberties cases. Rather, this argument is well grounded in the work of legal realists such as Llewellyn (1931) and Frank (1949), and early judicial behavior scholars such as Pritchett (1948), Murphy (1964), and Schubert (1965) and Segal and Spaeth (2002). Within these papers are docket sheets that note how each justice voted in each case the Court decided during Blackmun or Brennan’s tenure on the bench. With the exception of the oral arguments (see Decisions on the Merits: Oral Arguments) the remainder of the decision-making process occurs behind closed doors in the marble palace. O’Brien (1997) obtains similar results in his analysis of Justice Marshall’s docket books for the 1990 term. After these proceedings, Epstein and Knight (1998, pp. However, they are limited in their ability to always reach their preferred outcomes by the fact that they do not make decisions in a vacuum and by the fact that rules and norms of behavior govern their decision-making process. They do so in descending order of seniority with the chief justice considered the most senior justice. The justices sit behind a bench, but their seating is raised only about one meter above the floor. Other scholars have provided evidence of strategic interaction at almost every stage of the Court’s decision-making process, including during the agenda setting (certiorari) stage (Caldeira, Wright, & Zorn, 1999), during oral arguments (Johnson, 2004), and during conference discussions (Johnson, Spriggs, & Wahlbeck, 2005). Because justices wish to see their policies etched into law, majority opinion writers therefore seek to mitigate such potential threats. The Supreme Court of the United States is the highest court in the federal judiciary of the United States.The procedures of the Supreme Court of the United States are governed by the U.S. Constitution, various federal statutes, and the Court's own internal rules.Since 1869, the Court has consisted of one chief justice and eight associate justices. Epstein and Knight (1998) go a step further than Perry by providing convincing evidence to support the argument that the Rule of Four can be used for strategic purposes. Petitioners are allowed a reply to the respondent’s brief, but it must be submitted at least one full week before oral arguments are heard, and no more than 30 days after the respondent’s brief is filed. Elizabeth Slattery of the Heritage Foundation says the modern Supreme Court aims not to change the laws too quickly. The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. (2012) provide systematic evidence that justices speak to (and often speak over) one another, listen to their colleagues’ questions and comments, and use the oral arguments to predict the outcome of the case. More specifically, the defendants in this case (who had been charged with murder, robbery, and grand larceny) argued that the press should be excluded from their pre-trial evidentiary hearings because all of the pre-trial publicity was adversely affecting their ability to obtain a fair trial. not very large in size or amount, interpretation - n. the way something is explained or understood. Over the past decades, countless efforts have viewed court decisions as a function of personal attributes (e.g., Tate 1981), attitudes (Rohde and Spaeth 1976), and role conceptions (Gibson 1978). In the 2012 term, for example, multiple amicus briefs were filed in 67 of the 76 cases granted review. Further, unlike the Court’s early days, when the justices were transfixed by the great orators (or put to sleep from boredom) they largely control the argument sessions today. Article Fiveof the Constitution lays out the specific process. The justices simultaneously required the first written arguments, consisting of an abstract of points and authorities (Frankfurter & Landis, 1928). The court defines the power of the president. The Mississippi Supreme Court is the court of last resort among state courts. While these scholars point out that this norm can be and has been violated, justices do not often do so. This provides yet another method for the Supreme Court to make criminal justice policy. 22. Each brief may include appendixes of unlimited length, however additional arguments should not appear in these appendixes.18. In fact, it sets the stage for the final part of the process—opinion writing. The URL has been copied to your clipboard, File -- U.S. Supreme Court justices, front row, from left, Ruth Bader Ginsburg, Anthony Kennedy, Chief Justice John Roberts, Clarence Thomas and Stephen Breyer; back row, from left, Elena Kagan, Samuel Alito, Sonia Sotomayor and Associate Justice Neil Gorsuch. -Supreme court justice asks the other justices for opinion. The Due Process Clause has proven very important in the Court’s shaping of policy through this power. Rehnquist is also interesting as he passed 10 times more often once he was elevated to chief. Printed from Oxford Research Encyclopedias, Politics. This was a major change, as Hartnett (2000) points out: “the Supreme Court produced a fundamental change in the relationship between itself and state courts in constitutional cases—a change far larger than Congress evidently anticipated. Finally, Corley (2008) uses plagiarism software to detect when majority opinions “borrow” phrases and sentences from litigant briefs. While the justices sit for oral arguments on Mondays, Tuesdays, and Wednesdays during the term, private conference discussions take place on Wednesdays and Fridays. 6. Their decisions affect nearly every part of Americans’ lives. That said, such a denial does not mean the justices necessarily agree with the lower court decision. More specifically, to assuage the worry that the Court would reject cases that could be potentially important, Van Devanter explained that: We always grant petitions when as many as four think that it should be granted and sometimes when as many as three think that way. . Table 1 lists some of the more important Supreme Court decisions over the years and briefly … argue that, “it is not surprising that the judges would use part of the oral argument time for getting across obliquely to their colleagues on the bench arguments regarding the eventual disposition of a case” (Wasby, D’Amato, & Metrailer, 1977, p. xviii). 27. Elizabeth Slattery of the Heritage Foundation notes that justices are not supposed to be political. Since at least the time of John Marshall’s tenure on the Court (and through the 1960s), the discussion of a case at conference started with the chief and concluded with the most junior justice, while voting proceeded in the opposite fashion (see Clark, 1959). This (semi onerous) task was held by Justice Breyer from 1994 through January of 2006. It has invoked this power since Chief Justice John Marshall declared such power in Marbury v. Madison (1803). In short, the elected branches enjoy clear power that is often conducted transparently on a daily basis. Given this choice-set, and despite his earlier preference to await Stewart’s dissent, White joined Blackmun’s opinion creating a presumptive majority: Blackmun, Brennan, Marshall, White, and Powell. process. Learn vocabulary, terms, and more with flashcards, games, and other study tools. To this end, the legal model of decision-making posits that justices care about the law and are bound to it, and scholarly work in this area agrees. Scholars have only broken the surface of analysis about the Court’s most secretive meeting—the justices’ weekly conference. In the end, this part of the Court’s decision-making process plays a vital role for the justices. (REUTERS/Jonathan Ernst). In some cases, the Supreme Court has been unable to enforce its rulings. As John Paul Stevens (1983, p. 19) pointed out: “Every case that is granted on the basis of four votes is a case that five members of the Court thought should not be granted. Because the justices meet in conference twice a week, they use Wednesday conferences to discuss the merits (outcomes) of cases heard Mondays and Tuesdays. greatest or highest possible, distinction - n. the separation of people or things into different groups, bench - n. the place where a judge sits in a court of law, intimate - adj. But Justice Scalia was also a poster child for many of the heuristics and biases featured in our Ethics Unwrapped video series that often cause people to make poor decisions in many realms, including the ethical. The chief exercises this discretion and guides the opinion toward his preferred position by assigning it to ideologically proximate justices (or to himself), especially in important cases. Whatever justices decide, their ruling is final – unless lawmakers and the public decide to change the Constitution, or unless the Supreme Court overrules itself later. As Murphy (1964, pp. That is, the most senior associate justice presents and votes next with each justice doing so until the Court’s newest member finishes the discussion.24 Usually the justices have a fairly good idea of how they will vote in the case, but there are times when they are less certain. Specifically, one analysis of 347 cases over four recent terms included 43,000 utterances and 1.4 million words spoken by the justices (Black et al., 2009). Their findings indicate that, indeed, the Court median exerts influence over the majority opinion. In fact, three cable television channels and a radio network (C-SPAN, C-SPAN2, C-SPAN3, and C-SPAN Radio) devote themselves to allowing the public to watch floor debates and votes as well as virtually all committee proceedings. The trial judge would hear evidence and consider legal arguments from each side before making a decision. Linguistic analysis of our nation’s highest court is therefore the next frontier of judicial politics research. When a justice levels a threat or indicates a willingness to circulate a separate opinion the majority opinion author takes these indications particularly seriously. Data drawn from the archives of Justice Lewis F. Powell (at Washington and Lee University) illustrate one particular strategy chiefs may use during conference—passing on their chance to cast the initial vote. Lawyer and writer Michael Trachtman notes that Supreme Court justices respect the court’s earlier decisions. Litigants lucky enough to have a case accepted for review by the Supreme Court submit a second round of briefs. briefs, the first hurdle to winning review by the Court is making the “discuss list.” This list includes all petitions for review the justices will discuss and formally vote on during their weekly conference meetings. They test whether the Rule of Four protects “important” cases. For Knight and Epstein the answer is simple: “compliance with this norm is necessary to maintain the fundamental legitimacy of the Supreme Court” (1996, p. 1029). In his seminal work on Supreme Court agenda setting, Perry (1991) argues there are times when justices engage in strategic behavior during the certiorari stage, and the Rule of Four may encourage such behavior. Specifically, amicus briefs refer more often to precedent and external actors. On the 4th of April, Blackmun circulated a first majority opinion draft. This agenda-control model stresses the importance of an opinion author in pulling opinion policy away from the median and closer to his own ideal point (Murphy, 1964; Rohde, 1972; Rohde & Spaeth, 1976; Slotnick, 1978; Slotnick, 1979; Brenner & Spaeth, 1988). First, different justices employed different tactics in attempting to move policy closer to a preferred point. The analysis provided by legal scholars is both theoretically and empirically unsatisfying. The Term is divided between "sittings," when the Justices hear cases and deliver opinions, and intervening "recesses," when they consider the business before the Court and write opinions. The most junior justice (today it is Justice Kagan) must also answer the door if anyone knocks. A case that was “dead listed” was automatically denied review by the Court. Specifically, Stevens believed Blackmun’s opinion went too far in favor of First Amendment rights (freedom of press), rather than Sixth Amendment rights (right to a speedy and public trial), and he was hoping Blackmun would back off this stance. 11. However, the only data normally available to scholars are the conference votes.26 Little information exists about the legal and policy issues the justices discuss during conference, which means scholars have largely ignored this part of the Court’s decision-making process. All votes at conference are preliminary. For instance, over eight terms between 1986 and 1993 the Court discussed approximately 800 petitions per term (Black & Boyd, 2013). In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. In short, Supreme Court justices alter their behavior in order to achieve their goals within the context of making decisions by majority rule. This suggests to Wahlbeck et al. While they consider factors such as public opinion and a changing political and social environment, Epstein and Kobylka ultimately conclude, “it is the law and legal arguments as framed by legal actors that most clearly influence the content and direction of legal change” (1992, p. 8). -all justices vote. Just as certainly as days-long arguments were possible for the early Court, such a model was untenable as the justices’ caseload increased. 30–32) demonstrate almost 50% of all remarks made by justices during the Court’s conference discussions concern policy and 65% of statements in circulating memoranda during the opinion-writing process address policy considerations. As a result, in 1849 they instituted Rule 53, which limited each attorney to a two-hour argument (Frankfurter & Landis, 1928). If four Justices agree to grant the petition, the Supreme Court will consider the case. They find that an opinion goes through more drafts as the ideological heterogeneity of a majority coalition increases, as the number of suggestions given to the opinion writer by other justices increases, as the number of threats made to the opinion writer increases, and as the number of times other justices say they are yet unable to join an opinion increases. Justices’ conversations with attorneys are not the only discussions that take place during oral arguments. Empirical work on the Rule of Four focuses almost exclusively on how it affects the size of the Court’s docket each term. Amici, or friends of the Court, are most often interest groups or established organizations that file a brief in support of either side.19 Such briefs are limited to 9,000 words, and should “bring to the attention of the Court relevant matter[s] not already brought to its attention by the parties” (Rule 37.1). There is clear evidence that chiefs (and sometimes senior associates) act strategically to ensure the opinion assignment power. Despite this deficit, Blackmun responded to Stewart’s dissent with, “The dissent merits a mild response. If his own views are going to be in the minority, he can vote with the majority and retain the opinion-assigning authority.”. 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