14.5: Supreme Court Decision-Making

The first decision the Supreme Court makes in a case is whether to hear it. Each year, it receives thousands of petitions 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. Customarily, 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 controversial cases with significant implications for constitutional or statutory law.

Once a writ of certiorari is issued, the Supreme Court schedules oral arguments. During these, 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 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. These interruptions are carefully scrutinized by legal experts for clues about which side of the case the justices favor.

After oral arguments, the justices confer and determine, by majority vote, which side has won. Most decisions are not made public immediately. Instead, the court designates several days in June when rulings will be issued. Justices spend the interim period writing opinions stating which side of the case they agree with and why. The majority opinion represents the official statement of the court’s opinion. Majority opinion authorship is assigned by the Chief Justice (if he sided with the majority) or by the senior justice in the majority (if the Chief Justice sided with the minority). Other justices who supported the winning side may join with the majority opinion if they agree with its reasoning. They can also 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 write a dissenting opinion, or dissent, expressing their disagreement with the majority opinion and the reasons for it, and other justices can join a dissent or write their own.

The chief justice of the United States is the highest-ranking justice on the Supreme Court. This position entails certain procedural responsibilities but is otherwise equivalent to that of the other (associate) justices. The chief justice’s vote counts the same as that of an associate judge when deciding a case.

The majority opinion in a Supreme Court case becomes a precedent, which carries the force of law unless and until it is overturned. Oral arguments and opinions by the justices make frequent reference to precedents 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 as a default. When the court does overturn a precedent, the majority opinion will specifically describe what errors were made when the precedent was set that justify its overturning.

Agreement is more common on the Supreme Court than what news coverage tends to imply. In fact, unanimous verdicts are much more common than narrow 5–4 splits (as shown in Figure 14.2 below). Still, justices often disagree, not just about the specifics of individual cases but about how they should approach cases in general. One of these approaches is originalism, which contends that laws should be interpreted based on what their authors understood them to mean when they were written. Originalists don’t believe that laws should never be changed, but they feel those changes should be made through democratic methods—like acts of Congress and constitutional amendments—rather than by unelected judges.

Figure 14.2: 9–0 and 5–4 Supreme Court decisions by term, 1946–2023 (Source: Supreme Court Database)

A competing approach to judicial interpretation is that of the living constitution. Unlike originalists, living constitutionalists view the Constitution (and other laws) as “living” documents whose meanings evolve over time alongside society. In their view, interpreting laws in a modern context is both more practical from a policy standpoint and consistent with the Founders’ intentions. Living constitutionalists point to the relatively vague language of the Constitution as evidence that it was designed to be flexible to accommodate unforeseen changes.