May 03, 2005

How Does The Supreme Court Work?
#0 Introduction, Processes and Overview

Since it appears a number of people find this series of articles in an attempt to learn basic information about the Supreme Court and not to supplement an existing working knowledge, I'm adding this #0 essay to explain the court simply.

First, what is the Supreme Court of the United States? It's a collection of nine judges called Justices. They sometimes deal with criminal cases, but a lot of their importance has to do with the Constitution. The Justices are responsible for setting the accepted view of how the Constitution works and who can do what. This means they have a job that covers criminal acts, the First Amendment, abortion, affirmative action and a whole lot of other things in between.

The nine Justices serve terms that are unlimited. They stay on the court until they die or resign. The only other way to get them off the court is to impeach the judge, which is a special form of a criminal trial where the Congress votes on whether the judge broke the rules. The official name for this system is that Justices serve during good behavior. In practice, this could mean one day or thirty-six years, depending on how long the Justice lasts.

When a Justice dies, resigns or is impeached and convicted, the President of the United States has the job of appointing a replacement. He usually picks someone who was a lawyer and has already been a judge, but it could be anybody. Some of the most famous Justices had little or no experience as judges, and some weren't practicing lawyers.

The nomination goes to the Senate Judiciary Committee, where normally hearings and debate can be held on the nominee. Originally the nominated person would never go to Congress, but in recent decades the nominee goes to answer questions from Senators. In hearing, the Senators ask all sorts of questions, but most of the questions were written earlier as letters and sent to the nominee, who wrote letters to answer them, all before going to Congress. One problem with the questions is that if judges say too much about what they would do in a certain case, it would break the rules. So the judges end up giving very vague answers, even though the Senators ask important questions.

In theory, the nomination goes to the full Senate after the committee vote - even if the nominee LOSES the vote in committee. Then all the Senators vote on whether the nominee can be in the Supreme Court. The process of Senators voting on a President's nominee is called advice and consent. If more Senators vote for the nominee than vote against him, the nominee is the newest Justice for the court.

The 'leader' of the Supreme Court is called the Chief Justice of the United States. The Chief's job is to lead questioning, help come to decisions and to run the jobs of the Supreme Court, as well as help make the rules for other US courts as head of the Judicial Conference. If the President has been impeached, the Chief Justice is the judge at the Senate trial.

The Chief Justice is appointed the same way as the other Justices; first the President makes the nomination, then the Senate votes on it. Three Chief Justices were already on the court and promoted to be Chief. The other thirteen were not on the Supreme Court before becoming Chief Justice. If a regular Justice, called an Associate Justice, is promoted to Chief Justice, then somebody else is appointed to fill the empty Associate seat. This happened when President Reagan nominated William Rehnquist to be Chief Justice and nominated Antonin Scalia to replace him.

How does the Supreme Court operate? Well, the Congress has bills and resolutions, but the Supreme Court has opinions. In dealing with a case, the court reads briefs, listens to spoken arguments, and then gives an official opinion. The opinion decides who won the case, why they won the case, and what the rules are in a case. It's a lot more important than who won and who lost. It's really important why they win, because the same rules will be used again later by all US courts to decide similar cases in the future. The way one opinion will be used again later in other cases is called a precedent.

So if the Supreme Court does something one way once, then it's supposed to do it that way every time in the future, and so are all the other US courts. In the future, the Supreme Court might change its mind, especially if new Justices are on the court. For at least a while, precedent is supposed to count across the US. If the Justices decide that they want to make one person win but they don't it to become a precedent rule, then the decision is limited to the facts. This means that the rule isn't supposed to count any other time. If the Supreme Court changes its mind about a precedent later, then a decision that supposed to make a precedent can become limited to the facts.

So how do Justices make the decisions? Well, first they count heads and find out what the Justices think of the case. The side with the most Justices wins. Of the Justices on the winning side of a case, the one who's been on the court longest has seniority and gets to decide who writes the opinion. The Justices that disagree with the winning side can write an opinion, too, which is called a dissenting opinion. Justices that agree with the winning side but think so because of a different rule write a concurring opinion. Some Justices agree with some parts of the court's main opinion and disagree with others; if they write an opinion it's called concurring in part and dissenting in part. Finally, any Justice can join with another Justice's opinion, and always at least a few do so, whether or not the joining Justices wrote their own opinion also.

The dissenting parts don't count as rules, but if in the future the Supreme Court wants to change a precedent and make a new one, they will probably look at the dissenting opinions of the past to get an idea of what the new rule should be.

There are a few basic rules about every case the court decides. The first is the name. A case in US court always has a name based on the people involved. Marbury v. Madison means that a person named Marbury is suing a man named Madison. Businesses, states and other groups can also sue and be sued in the courts and have their names as case names. The person who asked the Supreme Court to make a decision on the case is the person whose name comes first; this means that Marbury asked the Supreme Court to hear the case. The person who comes first is called the petitioner, because he made the petition for the court to get involved.

For a case to get to the Supreme Court, either the court has original jurisdiction -meaning it's the first and last court to go to- or it has appellate jurisdiction -meaning at least one other court decision on the case has to come first before the Supreme Court will get involved- because there are too many cases otherwise. The original jurisdiction cases are listed in Article III of the Constitution as to include all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party. Every other case has to start in a lower court before it can get to the Supreme Court.

In order to get the Supreme Court to listen to a case on appeal, the petitioner files a petition for a writ of certiorari. The word certiorari comes from latin and means we wish to be informed; it's how the court gets the transcripts to review the case. If the Supreme Court denies the petition, then the issue is over but it doesn't mean the Supreme Court necessarily agrees with the rule and precedent the last court applied. The Supreme Court issues formal opinions for less than one hundred cases most years, so they have to refuse many cases in order to finish their work in a timely manner. As it is, the court usually takes a few months to give a decision from the end of spoken arguments.

If the Supreme Court comes to a decision that either the President or the Congress does not like, then there are a few options. The President has very limited power to oppose the Court; all he can do is control the judiciary through new appointments, which is important but long-term, and try to sway public opinion to his side. President Jackson declined to enforce a Supreme Court decision protecting Cherokee Indians from the state of Georgia, allowing Georgia to disobey the ruling. This rule-bending and -breaking is heavily frowned upon today.

The Congress has legal measures to respond to a court ruling. It has the power to reject appointments to the judiciary, which is a long-term solution. Short-term, the Congress can pass a law that says the Supreme Court can't make decisions about some issues. The Congress can also pass laws that will meet the court's rules but have the same effect as something made illegal. In extreme circumstances, the Congress can pass an amendment to the Constitution to fix a certain problem.

The Supreme Court is given a lot of respect in society because it's seen as the fairest and least political way to solve many divisive issues. It can also be an important protection for individuals and minorities that cannot get protection from Congress and others. By emphasizing law and liberty, the Supreme Court has a unique capacity, if it's willing, to shield individuals from loss of freedom without suffering electoral defeat as a result.

WEBSITE: This article is published on the neo-libertarian site here and is listed under tutorial issue articles here. This is an after-the-fact introduction written to accompany a series of articles about the Supreme Court. The other articles, numbering five at present, can be found listed here, and are currently featured on the sidebar at left under features (near the top).

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