Supreme Court

Writ of Certiorari• a/k/a “Granting Cert”• When 4 of 9 Justices of the Supreme

Court, the Court issues a writ (order) to the lower court, and the documents are sent to the Supreme Court.

• The Supreme Court does not retry a case. They simply hear the legal arguments.

• The Court receives 7000-8000 cert petitions each year, only hears about 150 cases.

Oral Argument• The attorneys representing each

side have 30 minutes to present the case to the Court. This includes taking questions from the Justices.

• After the Court hears the case, the Justices discuss it in Conference and take a preliminary vote.

• Opinion of the Court: The majority opinion, the legally binding decision

Supreme Court Opinions

• Concurring opinion: One or more Justices agrees with the result of the case, but not necessarily the legal reasoning (would decide it the same way on different legal grounds)

• Dissenting opinion: One or more Justices disagrees with the Court’s opinion and expresses that disagreement.

Opinion Assignment

• One of the Justices in the majority is assigned to write the opinion of the Court.

• If the Chief Justice is in the majority, he assigns the opinion.

• If the Chief Justice is in the minority, the senior Associate Justice in the majority assigns the opinion.

Opinion Assignment• Legal reasoning in the opinion determines

scope and breadth of decision.• A narrowly-written opinion focuses more

on the specific circumstances of the case at hand. It will have less impact on existing law than a broadly-written one.

• A broadly-written opinion may determine that all situations similar to those in this case must be treated identically (e.g., all laws in a category are unconstitutional)

Judicial Philosophy• What’s the proper role of the

judiciary in society?• Originalism, restraint, strict

construction– Usually (not always) associated

with political conservatism• “Living Constitution,” activism,

loose construction– Usually (not always) associated

with political liberalism

Interpreting the Law

• Strict construction vs. loose construction

• Strict: The law is to be interpreted literally as written.

• Originalism: Theory that a judge should try to understand and follow the Founders’ intent as closely as possible when interpreting the Constitution.

Interpreting the Law• Loose construction: The law

should be read metaphorically, rather than literally. Rights are not confined to those explicitly stated in the Constitution.

• “Living Constitution”: Theory that the Constitution’s meaning and interpretation changes over time as society’s values change– “Cruel and unusual punishment”

Judicial Activism vs. Judicial Restraint

Judicial restraint: Less willingness to overturn decisions of elected branches of government.

Theory: Laws should be made by those who are elected by the people and accountable to them. The courts shouldn’t overturn majority opinion except in extraordinary cases. Laws are the product of majority opinion, and your rights aren’t violated just because the majority prevents you from doing something you want to do, or makes you do something you don’t.