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This page describes the procedural process of cases before the Supreme Court, with an intent to clarify the purpose and content of various Supreme Court materials.
Life Cycle of a Supreme Court Case
Cases that are decided by the Supreme Court must go through a particular series of stages, each involving particular pleadings or actions on the part of the litigants and the Court itself.
- The Supreme Court has appellate jurisdiction over the following types of cases:
- Appeals from Federal Circuit Courts or United States Court of Appeals for the Armed Forces
- Appeals from state courts of last resort on issues of federal constitutional or statutory law
- The Supreme Court has original jurisdiction over certain claims as governed by Article III, Section 2 of the United States Constitution and Title 28 of the United States Code, section 1251. Most original jurisdiction cases involve suits between states as parties, usually over territorial or water rights disputes.
Petitioning to be Heard
- Petition for Writ of Certiorari
- Appealing litigants file a brief called a “petition for writ of certiorari” asking the Court to hear their case.
- Responses to Petitions for Writ
- Non-filing party has three options in response to a Petition for Writ of Certiorari
- Acquiesce. Non-filing party can agree that the Court should grant cert and hear the case
- Waive its right to file a response
- File a Brief in Opposition
- Reply Brief
- The petitioner has the opportunity to rebut the Brief in Opposition by filing a reply brief.
- Amicus Briefs
- Outside parties (amici curiae) who agree with the petitioner may file amicus briefs at this stage, supporting the petitioner’s request for review.
Justices Decide Whether to Grant Cert
- If a Justice decides to talk about a particular case in conference, it is put on the discuss list.
- If no Justices choose to the discuss the case, it is put on the dead list.
- Cases on the dead list are automatically denied certiorari. Such rejections do not have precedential effect.
- Four justices must vote in favor of granting cert.
- Out of the 7,000-8,000 cert petitions filed each term, the Court typically grants certiorari and hears oral argument in about 80. After the conference, an order list is published announcing the cases granted cert.
- A case that has been granted cert is put on the Court's docket and given a docket number.
- Merits Briefs
- Once a case has been granted cert, parties are required to file a new set of briefs.
- Unlike cert stage briefs, which emphasize why the Court should hear their case, these briefs are on the merits, and emphasize why the Court should rule in their favor.
- The respondent’s merits brief is due some time after the petitioner’s. (See Rules of the Supreme Court no. 25.)
- Joint Appendix
- The opposing parties may agree to file a joint appendix at the same time as the petitioner’s merits brief.
- A joint appendix is a booklet organizing relevant docket entries in the courts below, relevant pleadings, finding, conclusions, opinions, the judgment under review, and any other parts of the record that the parties particularly wish to bring to the Court's attention.
- Amicus Briefs
- Outside entities have another opportunity to file amicus briefs in support of a ruling in a party’s favor. Amicus briefs may include different or additional reasons why the Court should rule in favor of a party.
- Amici curiae generally have to ask permission to file an amicus brief. One exception is the U.S. solicitor general, who represents the government in Supreme Court cases.
- Reply Brief
- The petitioner may rebut the arguments made in the respondent’s brief on the merits and in any amicus briefs, and to reiterate the points made in the original petitioner’s merits brief.
- Normally, oral arguments are scheduled into monthly two-week sittings between October and April.
- The Court may hear 1-3 arguments each day, Monday, Tuesday, and Wednesday.
- Each case is allotted one hour of oral argument time.
- Each party receives 30 minutes to speak
- The petitioner may reserve a few minutes for rebuttal
- Either party may cede time to amici
- Members of the Court use this time to ask the representatives to clarify or elaborate on points made in their briefs.
- After oral arguments, the Justices discuss the case in a private conference and decide how they will vote.
- Majority Opinion
- If more than half the members of the Court agree on an outcome, their decision is written by one of the Justices (selected by the senior Justice among the majority). The majority opinion becomes the Opinion of the Court.
- If a Justice agrees with the majority’s outcome, but not the majority’s reasoning, he or she may write a concurring opinion.
- If a minority of Justices believe that a different decision should have been reached, a dissenting opinion may be written by a Justice (who is selected by the senior Justice among the dissenters).
- Reverse. Lower court’s decision was wrong, and the Court’s decision should be implemented.
- Affirm. Lower court’s decision was correct and should remain in effect.
- Vacate and Remand. Lower court’s decision was wrong and is no longer in effect; lower court should reevaluate the case based on the instructions in the Court’s opinion
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