9: Supreme Court - Ruling Process

Now that we have investigated how SCOTUS justices are selected, let us look at the process of how they achieve their rulings.

SCOTUS makes decisions based on a structured, deliberative process by which legal disputes become precedents. Three main constitutional powers aid the court in this process:

1) Statutory Construction – the ability of the court to interpret the meaning of laws made anywhere in the country.

2) Judicial Review – granting the court the power to overturn or declare unconstitutional any law made in the country, any Act of Congress, or presidential action.

3) The Power To Do Nothing, allowing the court to pick and choose the cases they want to consider among the petitions they receive.

The Supreme Court’s decisions shape laws,

affect civil rights

government power

and our civil liberties.

These are the process steps in a nutshell:

1. SCOTUS receives a petition, which is a case that is sent to them.

Generally, 90% of all cases SCOTUS receives are Appellate Jurisdiction. they are appeals of decisions by lower courts.

Article III, Section 2 of the Constitution also grants SCOTUS Original Jurisdiction, which means that these cases start at SCOTUS; they may involve foreign diplomats or dignitaries, federal states suing each other, or a federal state suing a foreign dignitary (or vice versa). About 10% of the cases the court hears tend to be of original jurisdiction.

2. The petitions are received by the “Cert Pool” = a group of 36 law clerks who create very short memos of each case. Each of the 9 justices has 4 clerks in the Cert Pool.

About 7000 cases are filed to SCOTUS every year, roughly 1% of them are accepted.

3. Each justice creates a Discuss List after receiving the short memos from the Cert Pool. During their term -from October to June- the justices tend to meet once per week to share their discuss lists. Which cases did they find of merit? How many of the other 8 justices felt the same?

If four justices find the same case intriguing, it goes on the docket -the list of cases to hear and decide during the term. This is called the Rule of Four.

Note that it does not take a majority (5) of the justices to place a case on the docket, and it does not matter whether the chief justice approves.

Roughly 75-85 cases get accepted per year.

4. A Writ of Certiorari is then sent to the attorneys of both sides of the case (the petitioner's and respondent's counsels). This writ states the date and time of the scheduled oral argument, and requests that all documentation pertaining to the case be forwarded to the court.

5. Law clerks summarize the case in longer memos. They elaborate on the facts and arguments, and they draft questions to be asked by the justices during the oral argument. At this stage (and even at the initial reception of the briefs), the court may receive Amicus Curiae letters from interested parties in civil society.

6. On oral argument days, each side (prosecution and defense) is usually allotted 30 minutes to present their arguments and to answer numerous questions by the justices.

Oral arguments tend to be scheduled on Mondays, Tuesdays, and Wednesdays of the first two weeks of the month. Generally, the court therefore has about 6 argument days, and hears roughly 10 cases per month, October to April, though federal holidays and other factors may change this schedule.

As a rule of thumb, May and June are reserved for writing the court’s decisions, though emergency pleas and urgent cases may still be scheduled and heard that late in the court’s term.

7. During argument weeks, the justices go into Conference on Wednesdays and Fridays. Present in these meetings are only the 9 justices. No clerks are included as these meetings are completely secret. In these meetings, each justice states how they will rule, explaining their opinion.

Wednesday afternoons (usually) the justices decide the Monday cases; Thursdays they meet for the Rule of 4, and Fridays they decide the Tuesday and Wednesday cases.

8. The Conferences conclude with deciding which one of the justices in the majority must write up the mandatory Majority Opinion for the decision, which is the explanation of the ruling that will be filed officially.

Often, a justice in the opposition drafts a Dissenting Opinion that may be joined by other justices who feel the same. Sometimes, a Concurrent Opinion is filed, too, which agrees with the ruling but not with its logic, offering an alternative logic. The writing of opinions can take many months and is secret from the rest of the country, and from anyone besides the justices and their clerks who help with the drafting.

9. Once all opinions are filed -the mandatory Majority Opinion and the optional opinions- the official announcement of the rulings takes place. Many announcements take place in June.

SCOTUS and DEI

Though justices are supposed to be objective, and unbiased, they are human and often ideological patterns emerge. Moreover, presidents nominate justices for their ideology. Generally, over many decades -haltingly but nevertheless, SCOTUS had advanced civil rights, such as in the cases Brown v. Board of Education (1954), Loving v. Virginia (1967), (Roe v. Wade, 1973), Obergefell v. Hodges (2015), to name a few.

Today, however, the court's persistent right-wing drift is causing concern in our society, as recent decisions have rolled-back or severely weakened civil rights protections. The rulings (among others) in:

- Shelby County v. Holder (2013) gutted the 1965 Voting Rights Act.

- Brnovich v. Democratic National Committee (2021) made it more difficult to challenge voting laws that discriminate racially.

- Dobbs v. Jackson Women's Health (2022) overturned Roe v. Wade and women's constitutional right to an abortion

- 303 Creative LLC v. Elenis (2023) weakened LGBTQ+ rights by allowing businesses to refuse serving them, and

- Students for Fair Admissions v. Harvard (2023) nixed race-conscious college admissions, effectively ending affirmative action in higher education.

More changes are in the works as we are waiting to learn the court's rulings on issues concerning DEI programs, race-neutral stopgaps for affirmative action, gender-affirming care bans, and others.

Do you agree with the right-leaning court's baseline argument that they enact "colorblind" jurisprudence, rejecting race-conscious policies that -in their view- violate the 14th Amendment's Equal Protection Clause?

The following readings and media, classroom activity, and homework assignment takes you deeper into these issues and questions so that you emerge with a greater understanding of the importance and effects of the Supreme Court's decisions on our lives.

Student Learning Outcomes

1. Explain the Supreme Court’s process for selecting, hearing, and deciding cases.
2. Analyze how statutory construction, judicial review, and case selection shape SCOTUS rulings.
3. Evaluate the impact of landmark civil rights rulings (e.g., Brown v. Board) versus recent rollbacks (e.g., Dobbs).
4. Debate the ideological shifts in SCOTUS and their consequences for DEI, affirmative action, and LGBTQ+ rights.
5. Assess the "colorblind jurisprudence" argument and its implications for the 14th Amendment’s Equal Protection Clause.