How Does the U.S. Supreme Court Work?

By Brett Snider, Esq. on October 07, 2013 | Last updated on March 21, 2019

How does the U.S. Supreme Court actually work? Most Americans may be in the dark about what goes on behind the scenes. As the first oral arguments of the Court's 2013 Term get underway today, it might be a good time for a quick refresher.

Here's an overview of how the U.S. Supreme Court chooses which cases to take, who will write the opinions, and how cases are decided:

How SCOTUS Decides to Take Cases

Every year, the U.S. Supreme Court receives thousands of petitions from lower courts to review appeals of certain cases. These applications are called petitions for writs of certiorari, and when SCOTUS decides to take a case it is commonly known as granting certiorari or even granting "cert."

The High Court can be very picky about which cases it chooses to take because for the vast majority of cases, there is no right to be heard in front of the U.S. Supreme Court. Although there is no hard and fast rule about how the Court chooses cases, they are typically cases that:

  • Will resolve conflicts of law,
  • Are politically or socially important,
  • Reinforce Supreme Court precedent, and/or
  • Fall within a Justice's favorite area of law.

The cases they take on appeal are entirely optional, and only in very few cases has the Supreme Court been required to hear a case -- like lawsuits between state governments.

Who Writes SCOTUS Opinions?

After the U.S. Supreme Court hears a case, the nine Justices take an initial vote on what to do with the case. After the votes are tallied, the senior Justice in the majority assigns the task of writing the majority opinion. That task can fall on another Justice in the majority, or on the assigning Justice himself (or herself).

However, according to Slate, 30 percent of the actual opinion-writing is performed by Supreme Court clerks, who are mostly mid-to-late 20-somethings from Ivy League law schools. Unless it's Justice Antonin Scalia -- he likes to write his own opinions.

How Are Supreme Court Cases Decided?

Most cases are decided in one of three ways by the U.S. Supreme Court:

  1. By procedure. The High Court is often squeamish about making a decision on the real substance of a case if it can be decided based on a legal procedural point. Many times, this procedural decision involves standing.
  2. On the merits. Sometimes the Justices can't ignore the real "meat" of a case, and it decides a case based on interpretation of the Constitution along with state and federal laws.
  3. Stare decisis. Even if a case is decided on the merits, the U.S. Supreme Court does not overturn old cases unless absolutely necessary. This is part of the reason why controversial cases like Roe v. Wade are not often overturned.

The U.S. Supreme Court is set to hear dozens of cases in October, and may end up changing the face of U.S. law and life. Keep checking back with FindLaw's blogs, as we'll be covering the most significant arguments and outcomes of the Supreme Court's 2013 Term.

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