Every new Supreme Court term brings headlines about the cases the justices will hear. Behind those cases is a much larger pile the Court reviews and turns away. Most parties who lose in a lower court have no right to a Supreme Court hearing at all. They have to ask.
A Supreme Court term begins, by statute, on the first Monday in October and usually continues until late June or early July. What happens in between follows a sequence that has changed little in decades.
Two kinds of jurisdiction
The Constitution gives the Supreme Court both original and appellate jurisdiction. In original jurisdiction cases, such as certain disputes between states, the Supreme Court is the first and only court to hear the matter. Most cases, however, arrive as appeals from lower courts, according to the federal judiciary’s guide to Supreme Court procedures.
For those appeals, the main route is a petition for a writ of certiorari, often shortened to “cert.” The petition asks the Court to order a lower court to send up the record of the case for review. Typically, the cases come from a federal court of appeals or from a state’s highest court.
The petition and its deadline
Under Rule 13 of the Rules of the Supreme Court, a petition is timely when it is filed within 90 days after entry of the lower court’s judgment. Rule 10 sets the tone for everything that follows: “Review on a writ of certiorari is not a matter of right, but of judicial discretion,” and a petition “will be granted only for compelling reasons.”
Rule 10 lists the kinds of reasons the Court considers. They include a conflict between federal courts of appeals on the same important matter, a conflict between a state court of last resort and another state high court or federal appeals court, and an important question of federal law that has not been, but should be, settled by the Court. The rule adds that a petition is rarely granted when the claimed error is a mistaken factual finding or the misapplication of a properly stated rule of law.
“Review on a writ of certiorari is not a matter of right, but of judicial discretion.” — Rule 10, Rules of the Supreme Court of the United States
How the justices choose
The volume is substantial. The Court’s own website says that each week the justices must evaluate approximately 130 petitions to decide which cases receive full review with oral argument.
Many justices take part in what is informally known as the “cert pool.” Incoming petitions are divided among the participating chambers, a law clerk writes a memo summarizing each case with a recommendation, and the memos are shared with the participating justices. The justices then discuss petitions at their private conference. Under the Court’s long-standing practice, a case is accepted when at least four of the nine justices vote to hear it, known as the “rule of four.”
The results are published in an Order List, released on Monday mornings when the Court is sitting, which records the cases accepted and rejected.
Briefs, argument and conference
Once the Court grants review, the parties file written briefs: the petitioner first, then the respondent, followed by shorter reply briefs. The U.S. government, represented by the Solicitor General, may file a brief, and outside groups can file amicus curiae, or “friend of the court,” briefs.
The Court hears oral arguments from October through April. With rare exceptions, each side has 30 minutes. Because the Court is usually reviewing another court’s decision, there is no jury and no witnesses are heard; the justices work from the record of the earlier proceedings and the briefs.
After argument, the justices meet privately in conference. According to the federal judiciary’s guide, the Chief Justice speaks first and the others follow in order of seniority. If the Chief Justice is in the majority, the Chief Justice assigns the writing of the Court’s opinion; otherwise, the most senior justice in the majority does.
Opinions and the end of the term
Justices may write concurring opinions, agreeing with the result but not the reasoning, and dissenting opinions. If the Court divides evenly, for example when a justice is recused, the lower court’s decision stands. Opinions are typically released by the end of the term in late June or early July, and the summer recess is spent reviewing new petitions and preparing for fall arguments.
For any case on the Court’s calendar, the key procedural fact is the same: it is there because at least four justices decided it should be.
Cover photo: “Equal Justice Under Law” above the columns of the U.S. Supreme Court building at night. Photo: Tony Webster via Wikimedia Commons, CC BY 2.0.
