The Form and Function of the Supreme Court

by Charles Anthony Smith

US Supreme Court Building, Washington, DC (Carol M. Highsmith Archive, LOC)The Supreme Court often stands at the center of the storm of politics. High profile cases over individual liberties, federal or state power, or even presidential elections can dominate the news and attention of the public. The close attention given to the court by politicians, the press, and the public does not regularly encompass the manner in which the Court actually functions. The dynamics of form and function shape the decisions the Court makes, how the cases are resolved, and how effective it can be at altering policy.

The Origins of the Court

The framers of the Constitution faced a difficult problem that led to the creation of the Court. The American revolutionaries had effectively overthrown a king at a time when royal rule was the norm and when government had an ownership interest in much of the commerce conducted by its citizens. There was no equivalent to a King’s Court in which a foreign nation or ruler could seek the redress of grievances. Simply put, in the eyes of the world, this new country could not be trusted to conduct commerce honestly because there was no king or queen to enforce the commitments to others. Foreign investors feared the mob—the voters—would keep Congress, state legislators, and state courts from ever enforcing commitments to foreign interests. The framers remedied this problem by creating the Supreme Court.

The Supreme Court was established through Article III of the Constitution. The balance of the judiciary was initially created through the Judiciary Act of 1789.The members of the Court are appointed by the president and confirmed by the Senate. They serve for life and cannot be fired or involuntarily replaced barring some form of severely inappropriate conduct that results in impeachment. This insulation from the political forces at work in elections meant that the Court could be trusted to simply resolve disputes without fear of political fallout. That is, the administrative avenue for the resolution of conflict that the Court provided meant that commitments made under the new government could be enforced if necessary. An ability to enforce the agreements enhanced the credibility of those agreements. This made trade more likely and conflict over trade less likely. The first decade of the Court was spent almost entirely on trade-related litigation involving foreign interests.

The Development of the Court

After the first ten years, which were devoted primarily to trade and foreign relations, the Court sequentially entered three broad eras of activity. First, the Court devoted most of its attention to resolving questions of intergovernmental authority. It resolved disputes between branches of government as well as between levels of government. The question of whether the federal or state government was the dominant force was resolved by the Civil War and lessened the need for the Court to entertain this type of question. The Court then entered a phase where it mainly resolved issues regarding the ability of the federal government to actively control commerce and the domestic economy. This era of the Court effectively ended with the implementation of the New Deal programs under Franklin Roosevelt. After that, the Court began to focus primarily on the relationship between government at all levels and the individual. The era of concern about civil rights and liberties continues today. While each of these eras overlap, and naturally the Court from time to time addresses an issue that fits more squarely with a different era, these are the broad historical phases of the Court.

The Structure and Jurisdiction of the Court

The number of justices that sit on the Supreme Court is not fixed or determined by the Constitution. Instead, the size of the Court is determined by the other branches of government through statutory law. In 1789, the first Court was seated with six justices. Another seat was added in 1807 and two more 1837. There were ten justices in 1863. In 1866, Congress stripped the number of justices to eight to stop President Andrew Johnson from making any new appointments. The Court has had nine members since 1869.

Article III of the Constitution establishes two types of jurisdiction for the Supreme Court. Jurisdiction is simply the scope and areas of authority or competence through which the Court may act. Under “Original Jurisdiction,” the Supreme Court may consider certain cases that have not been considered by any other court. These are limited to cases affecting ambassadors, public ministers, foreign consuls, and actions where a state is a party. In other cases, such as those involving treaties, the US Constitution, or admiralty and maritime law, the Supreme Court has appellate jurisdiction. That simply means that such a case must be initiated in a lower federal court before the Supreme Court may hear it. The Court exercises authority over the United States, controversies between two or more states or citizens of different states, citizens of the same state if the controversy arises out of a dispute over a land grants from different states, and any controversy involving a citizen or state and a foreign citizen or foreign state. Most cases reach the Court through an appeal from a lower court. Of the eighty to one hundred cases decided in a typical year, usually no more than five are original jurisdiction cases.

Standing, Ripeness, and Mootness

Article III limits the judicial power of the federal courts to “cases” and “controversies.” When combined, the “cases and controversies” limitation means that a matter must be justiciable—or suitable for resolution by the federal judiciary—in order for it to proceed in court. The parties to the conflict must have a real stake in the outcome and there must be a genuine conflict between them that is fit to be resolved. If a party is entitled to appear before the Court and make their claim, that party has “standing.” A controversy that is ready to be resolved is “ripe” while one that has not matured sufficiently for the Court to resolve it is “not ripe.” “Mootness” indicates that the controversy has already been resolved one way or another and there is no longer a need for the Court to get involved. Consistent with these general themes, the Court does not grant “advisory opinions” where it might advise whether a given law or action would be constitutional if enacted or accomplished. “Political questions” are another non-justiciable category of cases. The Court will not step in and resolve mere conflicts between political actors. These can be thought of as disputes that could not easily be resolved through interpretation of law, but rather are better resolved through the political process. An interesting aspect of these limitations on the Court is that the Court itself decides whether any given case satisfies these criteria.

Deciding to Decide

In part as a response to the Court’s increasingly overloaded “docket” (the Supreme Court’s docket is the list of cases awaiting its attention on appeal from lower courts and those rare cases that may be brought first in the Court, as specified in the Constitution), Congress passed the Judiciary Act of 1925. One of the most important aspects of the act was its expansion of the role of the writ of certiorari in Supreme Court proceedings.

A writ of certiorari (abbreviated “cert”) is the order or “writ” that an appellate court issues to a lower court, ordering the lower court to submit the full record of a given case for review by the appellate court in case the lower court has erred in deciding the case. The party losing in the lower court applies for the writ, and states reasons why the writ should be granted; the party winning below states reasons why the writ should not be granted and the lower court’s judgment should be allowed to stand. The existence of the writ of certiorari as part of the Supreme Court’s toolbox gives it extensive control over its workload and its role in shaping American laws.

Congress first gave the Court the writ of certiorari in a limited set of cases in the Judiciary Act of 1891. By 1925, the justices, led by Chief Justice William Howard Taft, were engaged in a vigorous campaign with Congress to expand the classes of cases that the Court could choose to review or not to review by certiorari, diminishing the classes of cases that could be appealed to the Court as of right.

Now the review of petitions for writs of certiorari occupies as much as half of the Court’s attention. The chief justice circulates a “discuss list” that will contain about 20 percent of the all the petitions listed; this “discuss list” culls for consideration those petitions that the chief justice deems most likely to be worth review. Any other justice may add to this list, but may not remove a case from it. A grant of cert does not particularly mean the Supreme Court disagrees with the lower court. It means nothing more than four justices believe the full Court should review the case. The Court often grants certiorari to resolve conflicts or splits among courts in two or more federal judicial circuits. That is, the Court may seek to clarify confusion when different courts have ruled different ways on comparable matters.

Oral Arguments, Briefs, and Amicus Curiae

Once the Court has granted cert, the clerk of Court notifies the parties of the issues the Court will hear and schedules the timeframe for presenting their arguments. The attorneys present written legal arguments called briefs and are allowed to make verbal arguments at the oral argument phase of the proceedings. The appealing party—the appellant—has forty-five days from the date cert is granted to file its brief. The opposing party—the appellee or the respondent—has thirty days after that to file its brief. The Court has strict guidelines on a variety of aspects of both the written and oral arguments. For instance, both sides must submit forty copies of their briefs and they may not go over fifty pages in length. The briefs memorialize the positions of the parties and provide legal arguments, research supporting those arguments, and either suggested remedies or possible ramifications of action to the justices and their clerks. The clerks are lawyers who work as research assistants to the justices. Often, individuals or groups not party to the litigation feel they have a stake in the outcome and file amicus curiae—or “friend of the Court”—briefs that advocate for one side or the other. Although the federal and state governments may file amicus curiae briefs as a matter of right, anyone else wishing to file an amicus brief must get permission from the Court in advance. Once the briefs have all been filed, the Court will schedule the oral arguments. Each side has thirty minutes to persuade the Court and respond to any question any justice may have. Although the lawyers will prepare their arguments in advance, any justice may ask any question at any time. Frequently, the oral arguments in contentious cases are primarily questions and answers.

The Court Decides

After the briefs have been filed and the oral arguments have been heard, the Court meets in conference—in private—to decide two major aspects of the decision-making process. The conference determines which justice will write the majority opinion and how long the opinion may be circulated among the justices for consideration and response. So long as the chief justice is in the majority, one prerogative is to be the author of the majority opinion. If the chief justice dissents—or disagrees with the majority opinion, then the most senior member of the majority has the privilege to author the opinion. A majority opinion resolves the case and becomes the law of the land. However, there are many instances where the members of the Court cannot agree on a unanimous outcome. Any justice who disagrees with the majority may file a dissenting opinion that explains how the majority got it wrong and what the dissenting justice would do differently. Sometimes a justice may agree with the outcome but disagree with why the majority made its decision. In this case, or whenever a justice had some disagreement with the majority but stills supports the outcome, the justice will write a concurring opinion. In essence, the justice will explain a distinction or difference about some dimension of the decision—for instance the rationale or the scope—where the majority does not quite get it right.

Precedent and Stare Decisis

The majority opinion becomes binding on lower courts as precedent. Precedent is a vertical mandatory constraint on lower courts. The Supreme Court does not lightly overturn precedent because it has a preference for stability and predictability in the law. However, it is important to note that only the lower courts can be said to be bound by precedent. The Supreme Court can and does reverse itself. It has an informal rule or guideline called stare decisis—loosely, “let the decision stand”—that pushes against reversal of previous Supreme Court decisions, but this is a horizontal and voluntary constraint. The lower courts may not rule contrary to precedent, but the Supreme Court may reverse itself at will. The journey from dispute among two parties to the majority opinion of the Supreme Court is a long and unlikely one. Despite the long odds of a Supreme Court resolution of any given case, the Court still is the focus of legal attention because it is, after all, the court of last resort.


Charles Anthony Smith is an assistant professor of political science in the School of Social Sciences at the University of California, Irvine and author of The Rise and Fall of War Crimes Trials from Charles I to Bush II (2012).

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