supreme court decision making process

December 25, 2020

States can also propose them with a two-thirds majority, and the holding of a convention for proposing the amendments. More specifically, justices discuss policy options and key precedents during their private conference discussions. Clerk’s legwork in hand, the opinion author prepares a first draft and, once complete, circulates this draft to the Court. Please see all COVID-19 announcements here. Linda Greenhouse is a reporter who followed the Supreme Court for 30 years. One of the current disagreements related to the Supreme Court is how the justices should think about, well, thinking. In short, the elected branches enjoy clear power that is often conducted transparently on a daily basis. And, she notes, it is open to visitors. 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 dead list included cases that were not going to be discussed or voted on by the justices. -all justices vote. In other words, how the Court rules (reverse or affirm) is simply not as important as the rules the justices set in their opinions. The former analyze how a justice can use threshold issues to keep the Court from deciding a case far from her preferred outcome.7 In addition, Johnson and his colleagues find that chief justices (as well as senior associate justices) can and do manipulate the voting rules during the Court’s conference discussions to move a decision closer to their preferred outcomes. 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. 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. Step 8 8.The justices hold a case conference to discuss issues and take a This sets up the possibility that the Court could simultaneously grant a prisoner’s petition to appeal his or her sentence while refusing to stay the execution that would, in the legal lexicon, “moot” the case if the prisoner was subsequently executed. Perry and Carmichael (1985–1986) take the question of case selection a bit further. Indeed, Murphy (1964) traces sophisticated voting to control opinion writing to John Marshall. 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). Johnson (2004) demonstrates that, during conference, the justices clearly pick up on issues briefed by the parties and on issues discussed during oral arguments. We know, however, that its origins come sometime after passage of the Evarts Act of 1891. 24. The result is that Rule of Four cases ultimately receive treatment similar to cases granted review with five or more votes. Each brief may include appendixes of unlimited length, however additional arguments should not appear in these appendixes.18. 9. Today almost all appeals come through the Court’s certiorari (cert.) In the U.S. Supreme Court, any justice can write a dissenting opinion, and this can be signed by other justices. In many ways, he was a “giant” of the Court, as many of his obituary writers are stressing. Yes, she says, new information, new situations, or simply new justices can help overturn a ruling. With so much time, effort, and paper spent on brief writing—and subsequent reading—the extent to which briefs affect outcomes is considered. What Happens When a … That is, when making decisions, they must account for the preferences of their immediate colleagues, the preferences of actors beyond the Court, and institutional norms and rules that might affect the decisions that they can make. 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). The process through which cases are placed on the Court’s docket is briefly discussed. Their findings indicate that, indeed, the Court median exerts influence over the majority opinion. A case that was “dead listed” was automatically denied review by the Court. So how do the court’s members make their important decisions? The bench median model mirrors legislative models of the median-voter theorem in assuming policy converges on the median voter; it is, after all, this voter who must be captured in order to gain a majority and thereby create policy (Black, 1958). Examining historical documents available for Gannett Co. v. DePasquale, 443 U.S. 368 (1979)—a case involving freedom of the press and courtroom access—gives clear insight to this dynamic process.29 To begin, the majority opinion was assigned to Justice Blackmun by Justice Brennan—this means that Justices Burger and Stewart were not in the majority when votes were counted at conference, but that both Brennan and Blackmun were.30. Beyond voting patterns, Johnson (2004) indicates that the vast majority of questions justices ask during oral arguments concern policy. The Supreme Court defines how the U.S. political process works, and how laws are made. The most junior justice (today it is Justice Kagan) must also answer the door if anyone knocks. Of course, it is easier today to hear what transpires in the Courtroom. As Justice Brennan (1973) put it, choosing cases is “second to none in importance.” It also clearly worries at least one former justice. - at least 6 justices must be present for the vote to … Indeed, today they possess litigant briefs (Epstein & Kobylka, 1992), briefs amicus curiae (Spriggs & Wahlbeck, 1997), briefs on certiorari (Caldeira & Wright, 1988), media accounts (Epstein & Knight, 1998), and lower court opinions. From their data it is clear that Burger, and then to a lesser extent, Rehnquist (when he became chief in 1986) passed on the initial vote significantly more often than associate justices. Supreme Court Justice Elena Kagan explained the process in which the Supreme Court makes decisions. The code has been copied to your clipboard. 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. 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. In these instances, scholars disagree as to which justices exert the most influence over the opinion author, and therefore over legal policy. Ultimately, this means the lower court decision remains the law. In fact, Burger was more than twice as likely to pass as any other justice on the bench. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. Rather, they are prone to speak to one another as well. 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. 11.Other justices write concurring or dissenting opinions (optional). As Hartnett (2000) put it, “thus was born the then revolutionary, but now familiar, principle of discretionary review of federal judgments on writ of certiorari.” Although there is evidence justices relied on a minority certiorari rule through the late 1800s and early 1900s, it was not until 1925 that its use became public when Justice Willis Van Devanter appeared before the House Judiciary Committee during its hearings on the Judges’ Bill.16. That is, the “rules of the game” may prevent the justices from always making decisions that equate with their most preferred outcomes. Greenhouse describes the Supreme Court building as having a modest quality. 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). Scholars have only broken the surface of analysis about the Court’s most secretive meeting—the justices’ weekly conference. Once the Supreme Court grants review in a case the parties file legal briefs to convince the justices how to decide. All votes at conference are preliminary. After the justices decide what cases to rule on, they read about the history of the legal arguments. 12. This section considers the role justices play in this part of their decision-making process. Madison decision) inferred the power for itself. This law established the circuit courts of appeals and codified that no right of appeal to the Supreme Court existed. 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