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how does the US supreme court decide which cases it will hear?
April 30, 2006 7:29 AM   Subscribe

how does the US supreme court decide which cases it will hear and others it will not hear? it all seems rather arbitrary.
posted by brandz to Law & Government (16 answers total) 1 user marked this as a favorite
 
I checked an authoritative source, and came up with this information:

"The United States Supreme Court is the ultimate court of last resort. While the cases heard by lower level trial courts and appellate courts can be appealed to state supreme courts and federal appellate courts, no other court looks over the shoulder of the U.S. Supreme Court. The opinions issued by the nine justices on this court are final.

Every year the U.S. Supreme Court receives thousands of requests to have the high court hear specific cases. Experts estimate that roughly 5000 requests are made annually. These petitions, called writs of certiorari, are essentially pleas stating, "please hear my case." Each justice on the U.S. Supreme Court has a number of skilled law clerks working for him or her and these clerks review every writ of certiorari and submit a "cert memo" regarding the writs they review to the justice they are assigned. The judges review the memos and hold a conference to determine which of these cases should go on the court's docket.

The "Rule of Four" controls matters when deciding which issues the high court will hear. If four justices agree that a specific writ of certiorari should be granted, then the case will be placed on the Supreme Court's docket and an order stating that certiorari has been granted will be issued to the petitioner.

Typically, the justices grant certiorari, or "cert" as it is commonly called, to cases which may have far-reaching, interesting issues. The court may wish to hear a case and issue its opinion so that it can offer guidance to the lower level judges throughout the country who have the same issues come through their courtrooms on a daily basis. Cert is also often granted when there is a conflict among a number of lower level trial or appellate courts in interpreting a rule of law or a prior judicial decision. In such cases, the Supreme Court will issue an order specifying the correct interpretation of the law to pave the way and set the legal precedent for the lower courts." (via)
posted by onalark at 7:35 AM on April 30, 2006


While certain disputes--between states, for example--are of original jurisdiction, 99% are of appellate jurisdiction. So, yes, the decision is arbitrary.
posted by ParisParamus at 7:37 AM on April 30, 2006


One of my constitutional law profs wrote an entire book on the subject. It was his contention based on conversations with former clerks that the justices could be quite political and tactical in deciding.
posted by grouse at 8:17 AM on April 30, 2006


political and tactical

Is this a surprise to anyone after the neo-nazi...er, neo-conservative, circuses we just had to appoint two new ones? We really need a change to this system, for starters: no lifetime appointments. I really don't want 80-year-old people who are mired in the past deciding the future.
posted by Spoonman at 8:33 AM on April 30, 2006


Here's a good article about it.

One important thing to know is that the Supreme Court almost never grants cert just to correct a mistake made by an individual lower court in a particular case. Instead, the Court looks for well-established "circuit splits" -- wide disagreements on a matter of law between appeals courts. "Certworthy" circuit splits are usually clearly acknowledged in the appellate decisions and the academic literature.

Court-watchers can also identify certain signs that indicate a case is being seriously considered. For example, after considering a petition the Court may ask the Solicitor General of the United States to "express the views of the United States" on the petition. If the SG recommends granting the peition, that significantly ups the chances.

So the cert process can be a little mysterious, and the Justices clearly have their own agendas, but it's not completely arbitrary. Court-watchers can usually identify which petions on the docket are certworthy, and while they can't predict which ones will be granted, most grants won't be a total surprise.

Putting it all together, here's my prediction for what will be granted tomorrow: 05-593, Osborn v. Haley, 422 F. 3d 359 (6th Cir 2005). Clear circuit split, somewhat important federal jurisdiction question, and the SG is in favor of the grant.
posted by footnote at 8:58 AM on April 30, 2006


Hey Spoonman, you do realize that the Court's tenous grasp on moderate jurisprudence is entirely due to the presence of the four liberal members of the Court, the most powerful and persuasive of which is 86-year-old John Paul Stevens?
posted by thewittyname at 9:20 AM on April 30, 2006


There is a growing concern that law clerks have too much power over the cert granting process (there is a growing conern that law clerks have too much power period). Whatever the level of power they yield, they definitely can skew what makes the docket. This assertions is talked about in this recent article. The couple people I know who have clerked for the Supreme Court tend to agree with that assessment.

Also, this is AskMe, not the front page, answer the question or take it somewhere else.
posted by Falconetti at 10:00 AM on April 30, 2006


Also, this is AskMe, not the front page, answer the question or take it somewhere else.

this question is AskMe-worthy though, right? i know i've had questions removed from AskMe before. just checkin.
posted by brandz at 10:06 AM on April 30, 2006


brandz - I think falconetti was referring to spoonman's little off-topic tirade.
posted by muddgirl at 10:16 AM on April 30, 2006


Prior commenters have the answer. Yes, I suppose you can say that it's arbitrary in the sense that there are no rigid rules they must follow--it's entirely up to the judges. In that sense, all of the law is arbitrary. There is no mathematical certainty on anything. That said, they do have some guiding principles. Circuit splits being one, "ripeness" being another. What may seem to the public to be a sympathetic plaintiff may to the justices be a poor set of facts on which to decide a major issue.

Also, note that the court can sometimes get quite a lot done by not hearing a case at all. By declining to hear a case, it effectively upholds the lower court ruling, and this strongly suggests that had the court heard the case, it would have upheld it.

There are also oddities like a D.I.G., "dismiss as improvidently granted," where the court, after having agreed to hear a case, can change its mind. Those are rare.

Anyone who claims the conservatives on the court are steering the court in a radical, anti-moderate direction obviously isn't familiar with Kelo.
posted by Brian James at 12:58 PM on April 30, 2006


Also, note that the court can sometimes get quite a lot done by not hearing a case at all. By declining to hear a case, it effectively upholds the lower court ruling, and this strongly suggests that had the court heard the case, it would have upheld it.

The Court hates that reasoning. I can't find any examples at the moment ("cert! /p denial" turns up an awful lot of cert denials on Westlaw), but you will get spanked if you ever argue like that in court. For all the reasons mentioned in this thread, cert granting is a discretionary process and the Court doesn't even have time for all the cases it DOES want to hear.

Anyone who claims the conservatives on the court are steering the court in a radical, anti-moderate direction obviously isn't familiar with Kelo.

Holy hasty generalization. "The liberals came up with one crazy-ass decision so the conservatives aren't radical!"
posted by rkent at 4:59 PM on April 30, 2006


Holy hasty generalization. "The liberals came up with one crazy-ass decision so the conservatives aren't radical!"

Now you're the one making generalizations. My only point was to show how pointless such generalizations are. And second, you're totally missing the point. The point isn't that the liberals came up with a crazy-ass decision--I never said the liberals were crazy. The point was that the conservatives, with an allegedly "tenuous grasp on moderate jurisprudence" as one commenter said, came up with a decision that, would, I think, resonate more with moderates, than would the "liberals'" decision. Does this disprove "radicalism," (however ludicrous that classification is), no, but it does show that generalizations can be misleading, and lead to counter-intuitive assumptions.
posted by Brian James at 8:09 PM on April 30, 2006


Anyone who claims the conservatives on the court are steering the court in a radical, anti-moderate direction obviously isn't familiar with Kelo.

When that decision came out, one of the networks had a "here's a liberal and a conservative to talk about this decision"

The liberal said, "This is a horrible decision and just shows the bad things that happen when conservatives are in control"

The conservative said, "This is a a horrible decision and just shows the bad things that happen when liberals are in control"
posted by dagnyscott at 5:40 AM on May 1, 2006


Just to clarify:

The simplest answer is that the Court decides to hear cases when there is a need for a clear national rule in some area of the law. What determines that need varies based on the philosophies of the justices, but it most often depends on whether there is substantial disagreement among the lower federal and state courts.

There are a variety of other factors at play, but this is the best way to understand the process. You are in a sense correct, though, given that deciding to hear 80 out of 8000 cases is quite a difficult task, and necessarily leads to some arbitrariness.
posted by padjet1 at 2:15 PM on May 1, 2006


In case anyone was dying for a follow-up, the Court did not take action on Osborn v. Haley on Monday and the petition will probably be conferenced again next week. This is another indication that the Court is seriously considering the petition.
posted by footnote at 5:18 AM on May 2, 2006


Osborn v. Haley was granted today, as I predicted. See, it's not that arbitrary!
posted by footnote at 4:40 PM on May 15, 2006


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