14.4: Supreme Court Decision-Making

The first decision the Supreme Court makes in a case is whether to hear it. Each year, thousands of petitions are submitted to the Supreme Court, either proposing new cases or requesting that a lower court’s decision be reviewed. Only about one percent of these petitions are accepted by the court, which does so by issuing a writ of certiorari (Latin for “to be made certain”) agreeing to consider the case. For the Supreme Court to issue a writ of certiorari, at least four justices must support hearing the case. When choosing whether to “grant cert,” the Supreme Court tends to prioritize cases which are more controversial and have more significant implications for constitutional or statutory law.

Once a writ of certiorari is issued for a case, the Supreme Court schedules oral arguments, during which lawyers representing the petitioner (the side which submitted the petition) and the respondent (the other side) present the facts of the case as they see them and attempt to persuade the justices. Oral arguments are open to members of the public and audio-recorded, but video recordings of Supreme Court proceedings are prohibited. Justices may interrupt the lawyers during their oral arguments to ask questions, which are often carefully scrutinized by legal experts for clues about which side of the case the justices are leaning toward.

After oral arguments, the justices confer and determine which side has won the case by a simple majority vote. Most decisions are not made public immediately; instead, the court designates several days in June when rulings will be issued. The justices spend the interim period drafting opinions stating which side of the case they agree with and why. The majority opinion, written by one of the justices who voted for the winning side, represents the official statement of the court’s opinion in the case. Other justices who supported the winning side may “join” with the majority opinion if they agree with its reasoning or write their own concurring opinion, or concurrence, if they agree with the majority opinion but wish to express additional or different reasons for doing so. Any justice who voted for the losing side may author a dissenting opinion, or dissent, expressing their disagreement and the reasons for it, and other justices can join a dissent or write their own dissents as they see fit.

The majority opinion in a Supreme Court case becomes a precedent, which carries the force of law unless and until it is overturned. Both oral arguments and opinions by the justices make frequent reference to precedents set in previous cases which relate to the case at hand. This reflects the doctrine of stare decisis (Latin for “to stand by decisions”), which maintains that the court’s decisions should be guided by precedent. Stare decisis does not mean that precedents cannot or should not be overturned, only that the court tends to abide by precedent when applicable. When the court does overturn one of its precedents, the majority opinion will take pains to describe what errors were made when the precedent was set that justify its overturning.