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The Supreme Court Of the United States (SCOTUS) has virtually unlimited power that is difficult to quantify. This has been true since the fourth Chief Justice, Justice Marshall. Even though landmark decisions from the United States Supreme Court shape and radically transform our lives, we may not know much about their or path to the Supreme Court in the first place. These decisions often trace back to individual citizens. Miranda, written by Chief Justice Earl Warren in 1966, for example, essentially addressed detainment and torture. Dred Scott, which prevented blacks from citizenship and access to the courts, was voided after the Civil War with the Thirteenth and Fourteenth Amendments.
The Supreme Court of the United States is a discretionary court with ultimate appellate jurisdiction, and it has nine Justices: Chief Justice Roberts (hence the name “The Roberts Court”), and Associate Justices: Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. SCOTUS Justices serve on the high Court for life and there are currently three living retired Justices: John Paul Stevens, Sandra Day O’Connor, and David Souter.
The Roberts Court is a conservative Court: Justices Roberts, Scalia, Thomas and Alito are conservative; Ginsberg, Breyer, Sotomayor and Kagan are liberal; Kennedy is considered to be the conservative swing vote.
The Cert Pool and the September 24, 2012 Conference
On September 24, a conference is scheduled in the United States Supreme Court, where a miniscule handful of legal cases on appeal will be chosen from many hundreds for a review. Being in the group (called the “cert pool”) can lead to weeks of insomnia and hopelessness even given the academic awareness of long odds. One is far more likely to be struck by lightning. Out of 8000 or so yearly cases, there may be decisions in only 150 cases, with full written opinions in 60-70, give or take. Statistics on 2011 opinions and dissents are here.
How cases get to the United States Supreme Court
Unless a person waives the right to appeal a decision in a legal case, everyone can pursue appeal of a judgment. Cases are either criminal, civil or military and they can come from the states, territories or the federal courts. During the initial process of appeal, called the “direct appeal,” courts of appeal will decide the case on appeal and affirm the result or reverse it. My state has a trial court and two courts of appeal. The process of direct appeal must be exhausted before one can petition the United States Supreme Court to review the case. This request is called a Petition for Certiorari. It is worth noting that the issues at trial are very different from the issues on appeal. The cert petition must be focused on one or two major issues and essentially condensed into one concise question.
Clerks for the Justices review, summarize and make notes on each incoming petition. The entire pool is then scheduled for a conference. At the conference the Court denies the overwhelming majority of the petitions without comment. Needless to say, the clerks can influence the petitions surviving the sweeping first cut. There is a good deal of creative speculation about what sorts of strategies may strengthen or weaken a petition’s chances. While Justice Alito is the only Justice who does not participate in the cert pool, he does write opinions on petitions ultimately selected. The September conference has 1898 petitions in it. At the SCOTUS blog, the petitions listed “Petitions We’re Watching” will likely be addressed in the conference. The Prop 8 DOMA (Defense of Marriage Act) is on the list, for example.
Aside from final decisions in capital cases, denial of a Petition for Certiorari has no effect on the interpretation, future course of litigation or future citation of the underlying case. It simply means that the Court declined to look at the case. Defendants in criminal cases who receive denial of certiorari will generally proceed with the appeal through the next step, which is called a State Habeas Petition. Criminal cases comprise approximately 40 percent of the cert pool.
The Court is naturally interested in issues that carve out and define the Constitution. Some cases present a set of facts that fit this task, like the recent Fourth Amendment GPS tracking device case. Written opinions then become the controlling and binding authority in all future cases. Miranda v Arizona is an example. According to various articles online, the Court is unlikely look at individual cases to resolve disputed facts or address a reported mail order catalog of clearly erroneous Other Stuff that represents no far-reaching significance. The Court will often choose a case that has reached a conclusion that departs from binding authority, particularly if that authority is a Federal one (ie the State Court conflicts with SCOTUS precedent). If a US Federal Court of Appeals Circuit case conflicts with another Circuit, the Supreme Court will resolve the “split.” This online site monitors Circuit splits.
As one who is in the cert pool, I began to educate myself because I had no idea how the process works. Federal courts are completely different than state trial courts and Courts of Appeal. I follow the pool with a sort of amazement and occasionally foray into reading tea leaves. I also realize that many cases have long and painful histories of litigation.
Since I mostly follow criminal cases for my own research, my interests naturally gravitate to the Fourth, Fifth, Sixth, Eight, and Fourteenth Amendments, and in the future I may touch on some of the recent cases with these issues. I will also talk a bit about the cert petitions, the responses, the waivers, and the invited responses as well as the types of rulings.
11 Comments
Mason – Is this you?
You may not have intended it, Elliott, but that may have been a rather insulting question, imo. It seems to imply that Crane-Station isn’t either smart enough, hasn’t the legal experience/interest, or the incentive to produce this fine primer on the SCOTUS cert pool.
She is, she does, and she has. To wit:
“As one who is in the cert pool, I began to educate myself because I had no idea how the process works. Federal courts are completely different than state trial courts and Courts of Appeal.”
She’s written about her case and hopes and request to be heard by SCOTUS many times. I’d add that it doesn’t take an attorney to write well about this subject, either, though passion helps. ;o)
LOL! This is the absolute truth, except I am not at all insulted! It seems to be something that many people are not that aware of. My disclosure here is that this was a result of me and my obsessive sleepless search for information about it. Mason did not know or contribute to the content. The article, therefore, is a layperson’s view.
I think that the reason people may not be aware is that 1. the criteria for selection may vary from cycle to cycle due to evolving and changing issues involving the law, and
2. The Court is discretionary. Even though many cases may be strong and “certworthy” the reality is not every case can be reviewed. I do not think anyone contests this reality or criticizes the Court for it. I am thankful that we have a right to at least present a question to our nation’s highest Court in the first place, even if they ultimately decline to answer- I think that all by itself is pretty amazing.
Goodness, no, it’s me, and the view is that of a curious generic layperson. Mason is a wealth of knowledge about trials and criminal procedure, but this particular topic falls outside of that, so I gathered the information myself. The funny thing is, the more I read about the process the more fascinated I am, and will likely continue to follow the cert pool in the future.
Proposition 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry.) – In 2008, voters supported the ban. Prior to the ban, both same sex and opposite sex couples could marry under the California Constitution. After November 2008, the people of California adopted an amendment to the California Constitution removing this right for same-sex couples. Petitioners challenged the change in a case that named the Defense of Marriage Act sponsors of the bill and others. The case proceeded to the US Court of Appeals for the Ninth Circuit, who determined that the ban was a 14th Amendment violation. The case is called Perry and the opinion was written by Justice Reinhart. Here is that opinion:
http://www.ca9.uscourts.gov/datastore/general/2012/02/07/1016696com.pdf
There are Petitions for Certiorari challenging the opinion and requesting US Supreme Court review in the September 2012 cert pool. The Supreme Court can grant or deny review. If it denies review, the 9th Circuit opinion stands. If the Court grants review, it may request additional briefs or schedule oral arguments. Or not. This is where tea leaves come in.
The Prop 8 appeal was live-blogged at this site, and @PamsHouseBlend and others have closely monitored the Prop 8/DOMA appeal and developments in the courts:
http://pamshouseblend.firedoglake.com/2012/06/22/pro-prop-8-star-witness-david-blankenhorn-now-comes-out-for-marriage-equality/
This site also monitors the situation:
http://www.prop8trialtracker.com/
According to the site, several amicus briefs were filed before the August 31 deadline and they are listed here:
Note: It takes four votes from US Supreme Court Justices to grant review on a Petition for Certiorari. This is sometimes called the “Rule of Four.”
au contraire! It was a compliment
LOL! Thank you!
Pardon me for being offended on her behalf. I didn’t (obviously) see the compliment. ;o)
Hi C-S. Justice Marshall was the fourth Supreme Court Chief Justice, not the first. John Jay was the first. The evolution of the court has become something of particular interest to me since I noticed that Jay deferred the court’s decision to a jury.
I think Marshall’s Marbury vs Madison changed that, by making the final arbiter of law the court (not the president or the congress — but also not a jury?), but I don’t really know how it happened that the Constitutional method of deciding cases: “jury…jury…jury…” should be morphed away to the point now where juries are so dumbed down that they no longer hear “the truth, the whole truth and nothing but the truth” of a case and where a retired professor can be arrested and prosecuted for distributing jury information leaflets outside a New York courthouse. We learned (back when they were still teaching civics classes) that the Constitution is a series of checks and balances, but it looks to me like in fact the Supreme Court, maybe after Marshall, set itself aside and is not itself checked and balanced by the other two branches. If it sat with a jury, the jury (“we the people”) might have checked and balanced, as they do the other two branches by voting, so all three branches would constantly turn to the original source of authority, “we the people,” and the focus might be on finding what is just beyond what is legal, and on on reasoning rather than punishment, maybe even win-win instead of win-lose. And just think what that would mean to the lunacy of the judicial immaculate creation of corporate personhood, or even the Dred Scott decision that helped tip off the Civil War. Why should we have to write and pass a Constitutional amendment or fight a war to check and balance a crazy judiciary? I swear, I think something went fundamentally wrong back in the early days. Checks and balances are like rock-scissors-paper, and endless flow, but the flow got cut. I wrote something about my wonderings here:
http://www.emptywheel.net/2012/04/01/requiem-for-aca-at-scotus-legitimacy-of-court-and-case/#comment-342490
I would specifically point out a passage from an article by Scott Horton (about the case of the retired professor, Julian Heicklen) that I linked there…
…and if you go to the Jefferson letter, the reason the newer crops of American lawyers no longer knew “what Whigism or republicanism means” was because the law school texts had changed:
(I added the Mansfieldism link from wikipedia)
I know I’m getting far afield from your cert pool, but it changes everything once you see it. There was a recent diary on Occupy the Justice System and I posted a ton of comments there on jury nullification.
“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” — Thomas Jefferson
Well, first of all, thank you for your analysis, and I did correct my error above. Bear in mind, I am just a layperson, but here is my take. 1. The jury. Not sure if this is the same concept, but in many cases it is not so much a situation of the jury reaching a wrong conclusion from the facts presented to it or from inappropriate persuasion, ie: the defense persuaded the jury to disregard jury instructions and make a finding in spite of the evidence.
What I have seen is juries being deprived of the whole picture and then deciding correctly based on what they saw. I do not have a crystal ball, but it strikes me that facts presented at trial are not usually the focus of a higher Court of Appeals review.
Rather, the highest court is concerned with judicial misapplication of the law such that a constitutional right controlled by existing binding authority comes into question. In addition, the departure from that authority can be perpetuated and expanded down the road, creating crisis. Another issue: In 14th Amendment cases currently before the court in Petition, both sides of Prop 8 are arguing claims of constitutional magnitude and they are asking the Court to resolve it. Other issues involve a new category of facts unripe before now to be addressed. A real example is GPS tracking, and a hypothetical one is Cyber-privacy. Again, I am not a lawyer, but from what I can gather, the US Supreme Court is likely to take the position that factual disputes leading to inappropriate verdict can be raised and resolved on direct appeal, so there is no need for intervention from above. That said, this sounds good in theory, but sometimes lower courts of appeal produce some pretty surreal opinions and instead of fixing things in accordance with precedent, they make a remarkable departure from it. This further complicates things.
In summary, the jury is the fact finder in general, although there are other types of pre-trial evidentiary hearings as well. Playing fast and loose with the facts should be straightened out pretty early, giving the jury a complete and fair picture. This often does not happen, and when it does not, one can attempt, at least, to fix things on appeal. With each successive step the core issues are framed and argued differently. By the time of the cert petition, the issue becomes one focused and significant question concerning interpretation of law. In a recent Kentucky case, the question was about exigent circumstances. Can police who smell marijuana knock on a door, and, if they hear something that sounds like destruction of evidence, can they enter and search without a warrant? (Fourth Amendment). The facts in the case and the jury verdict were undisputed. Application of the law was the question. The Supreme Court delivered an opinion saying that this practice is not a violation.
I am certain that you are way ahead of me in the discussion of issues in the courts, and I am rambling, but that is my take at this point. Thank you so much for comment- fascinating topic!