supreme court case study 65 answer key

Landmark Library

This library of mini-lessons targets a variety of landmark cases from the United States Supreme Court. Each mini-lesson includes a one-page reading and one page of activities. The mini-lessons are designed for students to complete independently without the need for teacher direction. However, they also make great teacher-directed lessons and class discussion-starters. 

Not sure which cases you want to use? Start by reviewing our Meet the Supremes Teacher’s Guide . It provides case summaries, teaching suggestions, and a crosswalk of the themes, laws, and amendments each case addresses. If you want to assign a Supreme Court case as a research project, use our Research Roadmap graphic organizer to guide students through the process.

Explore resources in this unit

• 6-8 | Middle
• 9-12 | High

EEOC v. Abercrombie & Fitch (2015)

This mini-lesson explores the Supreme Court’s decision regarding a company’s discrimination against a Muslim woman during the hiring process. Students learn how Title VII of the…

Marbury v. Madison (1803)

This mini-lesson covers the basics of the Supreme Court’s decision that affirmed the Court’s power of judicial review. Students learn how Congress tried to add to the Supreme…

Brown v. Board of Education (1954)

This mini-lesson covers the basics of the Supreme Court’s decision that overturned “separate but equal” in public schools. Students learn about segregation and “equality under the…

Clapper v. Amnesty International (2013)

This mini-lesson covers the basics of the Supreme Court’s decision that determined the government’s ability to conduct electronic surveillance of its citizens. Students learn about…

Texas v. Johnson (1989)

This mini-lesson covers the basics of the Supreme Court’s decision that burning the American flag is a form of political speech protected by the First Amendment. Students learn…

Dred Scott v. Sandford (1857)

This mini-lesson covers the basics of the Supreme Court decision that determined Dred Scott, having lived in a free territory, was not entitled to his freedom. Students learn about…

Minersville v. Gobitas (1940)

This mini-lesson covers the basics of the Supreme Court's decision that allowed schools to require students to salute the flag and recite the Pledge of Allegiance. Students learn…

Elk v. Wilkins (1884)

This mini-lesson examines the Supreme Court’s ruling that the 14th Amendment’s Citizenship Clause did not apply to American Indians born on Native reservations. Students analyze a…

In re Gault (1967)

This mini-lesson covers the basics of the Supreme Court’s decision that said juvenile offenders have a right to due process. Students learn about 14th Amendment due process,…

Tinker v. Des Moines (1969)

This mini-lesson covers the basics of the Supreme Court's decision that extended First Amendment protections to students in the classroom. Students learn about the concept of…

Lau v. Nichols (1974)

This mini-lesson covers the basics of the Supreme Court’s decision that required public schools to provide language supports to English and multilingual learners (ELs/MLs).…

Gibbons v. Ogden (1824)

This mini-lesson covers the basics of the Supreme Court’s decision that interpreted the Commerce and Supremacy Clauses of the U.S. Constitution and affirmed the federal…

Use the Scope & Sequence to help you plan your iCivics classroom experience!

Whether you enjoy finding opportunities within a well-structured sequence of resources or prefer looking around for pieces and bits that can be jigsawed together, our Scope & Sequence documents are a perfect reference point for planning. Scope & Sequence documents are available for elementary, middle, and high school classrooms and list all of our resources in one place.

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3.14 Required Supreme Court Cases

15 min read • june 18, 2024

Akhilesh Shivaramakrishnan

Some Background

• AP US Government & Politics students should be thoroughly familiar with 15 Supreme Court Cases for the AP exam.
• Not only should you be familiar with the final decisions, you should be familiar with the reasons for the majority opinion and how they impacted American society.
• According to the College Board, these cases are essential content in college courses and in-depth analysis will help you gain the basis needed for future courses in politics.

Why Do I Need to Know These?

• You will be asked to compare one of the required cases (for which no information will be provided) with a case that is presented to you on the exam.
• These required cases tend to appear throughout the AP exam multiple choice.
• It is essential that you analyze these cases in depth so you are prepared for the AP Exam!

What Are The Required Cases?

Marbury v. madison (1803), mcculloch v. maryland (1819).

• Schenck v. the United States (1919)

Brown v. Board of Education (1954)

Engel v. vitale (1962), baker v. carr (1962), gideon v. wainwright (1963), tinker v. des moines independent community school district (1969).

• New York Times Co. v. United States (1971)

Wisconsin v. Yoder (1972)

Shaw v. reno (1993), united states v. lopez (1995), mcdonald v. chicago (2010), citizens united v. federal election commission (2010), why these cases.

• According to the College Board, these cases are essential to college courses in introductory history and politics. Many of these cases are controversial or were decided 5-4.
• These cases will help you further enhance your knowledge of the AP Government curriculum. You’ll be able to see how the content you learn about in class applies to real situations.

4 Key Points for Each Case

• What context does the College Board want you to understand the case through?  There is a reason why the College Board wants you to know each of the required Supreme Court cases for the AP exam. In their syllabus documents, they list out the exact reason why a particular case is relevant to government and politics. This can give you context on why each case is important, so make sure to read it!
• Might be helpful - the date : Although you will never be asked to recall the exact date of a Supreme Court case, knowing the date can help you put the case into context and can enhance your FRQ response.
• Constitutional issues:  What does the American government revolve around? You got it - the Constitution! Make sure you understand the constitutional issue that each case presents.
• Holding, Constitutional Principle & Majority Opinion:  The holding of the case is based on something from the Constitution. Knowing the holding and constitutional principle that was used to decide the case  is the most important part . These will help you answer FRQ #3, which will ask you to compare the holding in one of the 15 required cases to a case you will be presented with on the AP exam.

Cases Involving Federalism

College Board Context:  “CON-2.B.2: The balance of power between the national and state governments has changed over time based on US Supreme Court interpretation of (these) cases.”

• Short Summary : In 1816, the Second Bank of the United States was chartered; soon after, in 1818, however, Maryland decided to pass a law that imposed taxes on the bank.  James McCulloch , who served as a cashier at the Baltimore branch of the Second Bank, decided not to pay the tax. The state court had ruled that the Bank was unconstitutional, to begin with, and that the federal government did not have the authority to charter a bank
• Constitutional Issues:  Two questions could be explored in this case. Did Congress have the implied power to create a bank? And secondly, could states tax a federal entity/bank?
• Implied Powers : implied powers expand upon the enumerated powers that are listed in the Constitution. Congress is allowed to borrow money, coin money, and tax expressly by the Constitution. The implied power of  creating a national bank allows for the federal government to implement this expressed power.
• Short Summary : Alfonzo Lopez was a Texas high school senior who took a concealed weapon inside his school. Federal charges were soon imposed because of his violation of the Gun-Free School Zones Act of 1990. The act stated that individuals could not possess firearms within school zones based on the premise of the Commerce Clause.
• Constitutional Issue : This case explored a constitutional issue involving the commerce clause, and whether the Gun-Free School Zones Act of 1990 exceeded the power allowed by the clause.
• Straight from the AP US Government Course Description : this case “(introduced) a new phase of federalism that recognized the importance of state sovereignty and local control.”

Cases Involving the First Amendment

College Board Context:  “LOR-2: Provisions of the US Constitution’s Bill of Rights are continually being interpreted to balance the power of the government and the civil liberties of individuals.”

TIP : Do you have trouble remembering the main points the First Amendment addresses? Remember the acronym  FEE RAPPS !

F ree  E xercise Clause

E stablishment Clause

P etition the Government

• Short Summary : The New York Board of Regents had authorized that at the beginning of each day, a short but  voluntary prayer would be recited. Several organizations filed suit against the Board of Regents, claiming that the prayer violated the Constitution. The New York Court of Appeals dismissed their arguments.
• Constitutional Issue : This case was significant and interesting because this prayer was both voluntary and non-denominational. However, the organizations filed suit based on a violation of the Establishment Clause of the Constitution, which states that a law could not be made “respecting an establishment of religion.”
• Main Idea? School sponsorship of religious activities = violation of first amendment
• Short Summary : Jonas Yoder, as well as other Amish parents, refused to send their children to school after the 8th grade. In accordance with their religion, they did not agree with high school attendance. They were later charged under a Wisconsin law that required students to attend school until age 16.
• Constitutional Issue : This case relates to the other major religious clause of the 1st Amendment: the free exercise clause. By requiring Wisconsin parents to send their children to school, without a faith exception, did it violate the parents' rights to freely exercise their religion?
• Holding and Constitutional Principles : The court held that the requirement to send children to school beyond the eighth grade was unconstitutional. It stated that an individual’s interest in the free exercise of religion was more powerful than a federal interest in sending children to school beyond the eighth grade.
• Short Summary : A group of students decided to wear black armbands in order to protest the Vietnam War. Mary Beth Tinker and Christopher Eckhardt decided that they would wear their armbands to school despite warnings from school administration. After wearing the armbands to school, they were sent home. The students decided to sue their school district for violating the freedom of expression.
• Constitutional Issue : The main question that was addressed here was whether the prohibition against wearing these armbands (and in general - symbolic protest) violated the freedom of speech clause of the First Amendment.
• Majority Opinion : A common phrase you might hear is: “students don’t shed their rights at the schoolhouse gate.” This quote comes from the majority opinion in this case!

New York Times Co v. United States (1971)

• Short Summary : This case, also known as the Pentagon Papers case had to do with the First Amendment. The Nixon Administration tried to prevent the New York Times from publishing material that belonged to a Defense Department study about US intervention in Vietnam. President Nixon stated that it was necessary to national security to prohibit it before publication, also known as prior restraint.
• Constitutional Issue : The Constitutional issue that revolved around this case was whether the Nixon administration’s prior restraint was constitutional and if preventing the publication of “classified material” was a violation of the First Amendment’s freedom of the press.
• Holding and Constitutional Principle : The Supreme Court, in this case, bolstered the freedom of the press guaranteed by the First Amendment. In a 6-3 vote, the Court established that there was a “heavy presumption against prior restraint” even for national security purposes. This is a key case to know for freedom of the press!

Schenck v. United States (1919)

• Short Summary : During World War I, a pair of socialists, including Charles Schenck distributed leaflets that stated the draft violated the 13th Amendment - which prohibits involuntary servitude. The leaflet wanted people to disobey the draft. Schenck was charged with violating the Espionage Act of 1917. They appealed on the grounds of the First Amendment.
• Constitutional Issue : This was a First Amendment case and the question was whether the Espionage Act violated the First Amendment and if it was an appropriate way that Congress exercised its wartime authority.
• Holding and Constitutional Principle : The Supreme Court held that the Espionage Act did not violate the First Amendment and it was an appropriate exercise of Congress’ wartime authority. This was a key limitation on the First Amendment as the free speech clause does not allow for advocacy of unlawful behavior.

Cases Involving Selective Incorporation

College Board Context:  “LOR-3: Protections of the Bill of Rights have been selectively incorporated by way of the Fourteenth Amendment’s due process clause to prevent state infringement of basic liberties.”

• Short Summary:  Clarence Earl Gideon was charged in Florida state court on a felony - breaking and entering charge. During his trial, Gideon requested that he receive a court-appointed lawyer; however, in accordance with Florida State law, an indigent defendant could only have an attorney be appointed in capital crimes/cases. Gideon then filed a habeas corpus suit, stating that the court’s decision violated his rights to be represented.
• Constitutional Issue : The constitutional issue in this case involved the Sixth Amendment and whether the right to counsel guaranteed in this amendment also applied to felony defendants in state court.
• Holding and Constitutional Principle : The holding was that the Sixth Amendment’s right to counsel applies to state court defendants via the Fourteenth Amendment. The Court stated that because the  right of counsel is fundamental, it should be incorporated into the states.

Roe v. Wade (1973)

• Short Summary:  Norma McCorvey (Jane Roe) wanted an abortion but could not legally have one in the state of Texas, because of a state law that prohibited abortions except in cases where the mother’s life was in danger. She questioned the legality of this law.
• Constitutional Issue : The Constitutional issue in this case was whether a woman’s right to have an abortion was permitted by the Constitution, and whether it fit into the broad right of privacy.
• Modern Connections : This case is one of the most controversial cases to appear before the Supreme Court. Political candidates are often split along party lines - Democrats often agree with this holding and Republicans often disagree.
• Short Summary:  Chicago passed a handgun ban law, and several suits were filed against the city challenging the ban after another case ( District of Columbia v. Heller ). In that case, the Court had held that a DC handgun ban violated the Second Amendment. There, since the law was enacted by the federal government, the Second Amendment was applicable.
• Constitutional Issue : In this case, the applicability of the Second Amendment to the states was argued, and if the 2nd Amendment’s right to bear arms (interpreted as an individual right) also applied to the states. This involves selective incorporation!
• Holding and Constitutional Principle : In its decision, the Court stated that the handgun ban was unconstitutional in a 5-4 decision. Because the right to self-defense was  fundamental , the 2nd Amendment was incorporated to the states through the Fourteenth Amendment’s due process clause.

Cases Involving the Equal Protection Clause

College Board Context:  “PRD-1: The Fourteenth Amendment’s equal protection clause as well as other constitutional provisions have often been used to support the advancement of equality.”

• Short Summary:  This is one of the most famous cases in US history. Relating to the racial segregation of schools, African American students had been denied admittance to public schools because of these segregation laws, and many argued that this was in violation of the Constitution.
• Constitutional Issue : This was an issue in terms of the Equal Protection Clause of the Fourteenth Amendment. A previous case, Plessy v. Ferguson, held that segregated facilities were legal as long as the facilities were equal (called “separate but equal doctrine.”) In this case, racial segregation in public school education was argued against based on the Equal Protection Clause.
• Judicial Review : The Supreme Court is allowed to reverse previous rulings based on the premise of judicial review. See the Marbury v. Madison case for more info about this!
• Stare Decisis : The case established that this principle, which states that current courts should look to previous decisions for interpretation, will not always be upheld.
• Enforced? : The Court required states to desegregate "with all deliberate speed," and when schools had not desegregated after 10 years, the Court issued another opinion requiring immediate desegregation. This is an example of how judicial decisions may not be enforced by the federal or state executive departments.

Cases Involving Federal Policy

College Board Context:  “PRD-2: The impact of federal policies on campaigning and electoral rules continues to be contested by both sides of the political spectrum.”

• Short Summary:  The Bipartisan Campaign Reform Act of 2002 had previously banned corporations from independent political spending and direct contributions to campaigns or political parties.  In 2008, Citizens United was not allowed to show an anti-Hillary Clinton movie.
• Constitutional Issue : The issue here was whether the BCRA applied to nonprofits, or if the First Amendment’s free speech clause protected such political speech.
• Further Impact : This led to the development of Super PACS and a significant increase in the amount of money contributed to political campaigns. Note : In my opinion, this is one of the hardest cases to get straight! This is one I would definitely recommend studying early-on before the exam!

Cases Involving Districting & Representation

College Board Context:  “CON-3: The republican ideal in the U.S. is manifested in the structure and operation of the legislative branch.”

• Short Summary:  Charles Baker stated that an old law (1901) that detailed the apportionment for Tennessee’s General Assembly had been ignored, and stated that reapportionment did not take into account the significant change that the state had gone through.
• Constitutional Issue : The issue here was unique, and was regarding whether the Supreme Court as a unit had the authority to hear cases that related to legislative apportionment.
• Impact : This case opened the door to more challenges to unfair redistricting by way of the Equal Protection Clause. Eventually, it also led to the development of the one person, one vote doctrine.
• Short Summary:  Several North Carolina residents challenged a proposed, unusually shaped district. They believed that the only purpose of the district was that it would definitely elect African-American representatives.
• Constitutional Issue : The constitutional issue here was whether racial gerrymandering took place with this district (it was very narrow) and if the district raised an Equal Protection Clause question.
• Further Impact : A key fact about this case is that majority-minority districts can be  constitutionally challenged if race was the sole factor in their creation.

Cases Involving Judicial Review

College Board Context:  “CON-5: The design of the judicial branch protects the Supreme Court’s independence as a branch of government, and the emergence and use of judicial review remains a powerful judicial practice.”

• Short Summary:  The 1800 election ended in a defeat for John Adams to Thomas Jefferson. Before Adams’ term ended, Congress passed the Judiciary Act of 1801 (creating new courts, adding new judges). It was an effort by John Adams to keep his own influence in federal courts even though he was leaving office (still occurs today.) His appointments to these courts, however, were not valid until the appointed judges were delivered their commissions by Jefferson’s Secretary of State. Marbury was one of the judges appointed; however, his commission was not delivered.
• Constitutional Issue : A key issue was whether the Court had the authority to order the delivery of commission, and if a federal judge could even bring the case to court.
• Holding and Constitutional Principle : The Court held that although legally, the commission should have been delivered, the clause of the Judiciary Act of 1789 which enabled Marbury to bring the case to court was unconstitutional. By declaring a law made by Congress unconstitutional, the practice of  judicial review  was established.

How to study the required court cases?

We suggest making sure to create a study plan and set up your study space with a good environment. Then, go over each court case and quiz yourself on the details. To help with your productivity, especially during the last few days before the exam, you should use a  pomodoro study timer to break up your sessions into intervals and make time for breaks. It is also hugely beneficial to study with friends so that you can motivate one another and crush the AP Gov exam together! 🙌🏾

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Ilisabeth S. Bornstein, The Conversation Ilisabeth S. Bornstein, The Conversation

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• Copy URL https://www.pbs.org/newshour/nation/10-tips-for-reading-a-supreme-court-case-if-youre-not-a-lawyer

10 tips for reading a Supreme Court case if you’re not a lawyer

From gun rights to the availability of the abortion pill to at least one — and possibly a second — constitutional case involving former President Donald Trump, the U.S. Supreme Court is considering cases this term that may result in momentous decisions in 2024 .

If you follow news coverage of these and other cases, you may want to read the Supreme Court decisions for yourself to fully understand what was decided, why and how. But when you read a Supreme Court case for the first time, the legal language, unique formatting and structure can be daunting, like looking at a giant rock face and not having any clue about how you climb to the top.

The first page of a Supreme Court decision issued in June 2023. Image provided by the Supreme Court of the United States

I have taught law to undergraduates for the past 12 years , so I am sympathetic to the nonlawyer’s plight. Here are some techniques I teach my students to help them break a Supreme Court opinion into digestible parts. They should help you begin to understand what was decided, why and how in the important cases being considered by the court this term.

Where do I find the case?

First, make sure you know the names of the parties — meaning the different people, companies or organizations involved — in the case. This may require some quick research. For instance, a search for “abortion pill case” results in this article . When I skim the article, I learn that the Food and Drug Administration is being sued by the Alliance for Hippocratic Medicine, so these are the parties in the case .

Once you know the names of the parties, there are several free options available to find the court’s actual ruling, which is called a written opinion. You can search on the Supreme Court’s website or on Oyez.org . On both sites, the default search option is for cases in the current term, which is October 2023 through October 2024. Take care to adjust your search for the correct time period if you are looking for a case decided in a prior term.

Because the opinions are often long, I recommend getting a PDF version of the case so you can more easily skim and find what you are looking for.

Is this entire document the opinion of the case?

No. Once you get the PDF of a specific case, the document begins with the “Syllabus,” which is the court’s summary of what the case is about. It briefly sets out the facts and the legal principles, as well as the outcome of the case. This is like the blurb on a book jacket — a preview or summary, but not the entire work.

Keep reading to find the part labeled “Opinion of the Court,” which represents the court’s official decision in this case. The opinion will include an opening sentence along the lines of “Justice X delivered the opinion of the court.”

Toward the end of the opinion, you may see what is called a “concurrence” and/or a “dissent.” A concurrence generally means that the justice who wrote it agrees with the decision of the court — what is called the “holding” — but does not agree with the reasoning for getting there.

A dissent, on the other hand, disagrees with the decision of the court for any number of reasons. The top of the page will be labeled either “concurrence” or “dissent” and will also state which justice or justices authored it. There may be more than one concurrence or dissent in an opinion.

While a concurrence and dissent are important records of some justices’ thinking on the issue, they are not part of the opinion. The content of a Supreme Court opinion is considered “binding precedent,” which means all other courts must follow this decision in the opinion. The concurrence and dissent are not binding, meaning no court is obligated to follow those decisions. However, they are both valuable records and can provide guidance for future legal cases about how justices are likely to view certain legal arguments.

How do I make sense of the opinion?

The opinion is generally made up of four parts: the facts, the issue, the holding and the reasoning. These parts may not be specifically identified with headers, but they are the main ingredients of the opinion. Here’s what each part means.

This is a summary of who is suing whom about what and why. It may also describe which lower court or courts decided the issue and how it was decided before the case arrived at the Supreme Court. You’ll find the facts at the beginning of the opinion.

This is the question the court is being asked to decide. It might be located at the start of the opinion or at the end of the facts. Sometimes, there may be more than one issue. To find the issue(s), look for key phrases like:

• The question before us is …
• We are asked to decide if …
• We consider the question whether …

This is the court’s answer to the question(s) posed. This answer will serve as precedent to guide future cases on this topic at both the Supreme Court as well as lower courts. Sometimes the holding can be found right after the issue. Other times, it appears much later in the opinion or at the end. Some key phrases identifying the holding:

• Therefore we conclude …

Most of the opinion will be the reasoning. The reasoning explains how the court reached its holding. The court may explain which existing precedent — holdings from prior Supreme Court cases — applies. The court may also spend time explaining how to interpret language in a federal statute or balance conflicting rights, such as one person’s right to privacy and another person’s right to free speech .

Opinions are often long, so skim first. Consider reading simply for organization, like finding the headings in a textbook chapter to understand the broad ideas. Where does each part begin and end? How many concurrences or dissents are there, and who wrote them?

The concurrence or dissent may not describe the issue the same way as in the opinion. This is precisely why a justice writes a separate explanation — they may feel that the court should have framed the issue differently and perhaps reached a different outcome.

This article is republished from The Conversation under a Creative Commons license. Read the original article .

Ilisabeth S. Bornstein is a lecturer in legal studies at Bryant University.

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Article contents

The supreme court decision making process.

• Timothy R. Johnson Timothy R. Johnson Distinguished Teaching Professor, Political Science and Law, University of Minnesota
• https://doi.org/10.1093/acrefore/9780190228637.013.98
• Published online: 22 November 2016

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.

• Supreme Court
• decision-making
• law and politics

Introduction

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. 1 Since the turn of the 21st century alone, the Court has made decisions that affected the outcome of a presidential election ( Bush v. Gore ), universal health care ( National Federation of Independent Business v. Sebelius ), the liberty of same sex couples ( Lawrence v. Texas and Obergefell v. Hodges ), and the voting rights of minorities ( Shelby County v. Holder ). In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. 2

This may be a controversial position given the powers held by the elected branches at the federal level. Indeed, Congress has clear and important powers explicated in Article I of the Constitution. As such, among other powers, it declares war, decides how to raise and spend money, and ratifies all international treaties. At the same time, the president is the nation’s chief executive and commander in chief of the military. In short, while the U.S. Supreme Court hears and decides only about 75 cases per term, Congress and the executive branch wield their powers on a daily basis. However, given the issues on which the Court sets legal policy, it is not a stretch to suggest that the justices do indeed wield a great deal of power.

Beyond the debate about the power of each branch, the two elected branches often carry out their jobs in the public eye. Indeed, the president is the most visible political figure in the nation, and the work of Congress is covered (at a minimum) on a regular basis by the mass media. In fact, three cable television channels and a radio network (C-SPAN, C-SPAN2, C-SPAN3, and C-SPAN Radio) devote themselves to allowing the public to watch floor debates and votes as well as virtually all committee proceedings. In short, the elected branches enjoy clear power that is often conducted transparently on a daily basis.

In contrast, with the exception of one hour set aside for litigants to present oral arguments in most cases it decides, and the public announcement of its decisions, the work of the U.S. Supreme Court is conducted almost completely outside of the public’s eye. 3 As a result, the Court’s decision-making process is largely opaque, and therefore the public knows very little about how the justices reach the decisions that affect every part and every citizen of the United States. An attempt is made to illuminate this process so that scholars, students of the Court, and Court watchers alike can gain a better understanding of the way in which the justices conduct their business and come to terms with some of the most important legal and political decisions in our nation. The conventional theoretical account of Supreme Court decision-making is briefly overviewed and the Court’s internal decision-making process from agenda setting to opinion writing is examined.

The Strategic Model of Decision Making 4

Supreme Court justices are policy-oriented strategic decision makers (Epstein & Knight, 1998 ; Eskridge, 1991a , 1991b ; Ferejohn & Weingast, 1992 ; Gely & Spiller, 1990 ), which means their decisions are constrained by a host of factors (Maltzman, Spriggs, & Wahlbeck, 2000 ; Epstein & Knight, 1998 ; Johnson, 2004 ; Black & Owens, 2012 ; Black, Wedeking, & Johnson, 2012 ). That is, when making decisions, they must account for the preferences of their immediate colleagues, the preferences of actors beyond the Court, and institutional norms and rules that might affect the decisions that they can make. The three prongs of this model are considered.

Justices Are Goal-Oriented

An abundance of evidence exists to suggest that Supreme Court justices have many different goals (see, e.g., Levi, 1949 ; Cushman, 1929 ; Baum, 1997 ; Hensley, Smith, & Baugh, 1997 ; Epstein & Knight, 1998 ). For example, it has been well documented that some justices seek principled decisions, or decisions that will sustain the Court’s legitimacy (see Baum, 1997 ). While justices may have many goals, conventional wisdom in the study of judicial politics suggests that the main goal of most Supreme Court justices is the attainment of policy in line with their personal preferences (Segal & Spaeth, 2002 ; Maltzman, Spriggs, & Wahlbeck, 2000 ). As Epstein and Knight ( 1998 , p. 8) point out, “[J]ustices, first and foremost, wish to see their policy preferences etched into law.”

That policy is the main goal of Supreme Court justices is neither a new nor a controversial idea. Rather, this argument is well grounded in the work of legal realists such as Llewellyn ( 1931 ) and Frank ( 1949 ), and early judicial behavior scholars such as Pritchett ( 1948 ), Murphy ( 1964 ), and Schubert ( 1965 ) and Segal and Spaeth ( 2002 ). Scholars have provided empirical support for this argument in several ways. First, individual justices’ voting patterns are very consistent over time. For instance, with the exception of two terms ( 1974 and 1977 ) Lewis Powell voted liberally in civil liberties cases no more than 43% of the time in any given term. Likewise, William Brennan’s liberal support for civil liberties fell below 70% only one term during his Court tenure ( 1969 ) (Epstein, Segal, Spaeth, & Walker, 2011 , p. 456). This consistency indicates justices pursue specific policy goals, and rarely waver from doing so.

Beyond voting patterns, Johnson ( 2004 ) indicates that the vast majority of questions justices ask during oral arguments concern policy. After these proceedings, Epstein and Knight ( 1998 , pp. 30–32) demonstrate almost 50% of all remarks made by justices during the Court’s conference discussions concern policy and 65% of statements in circulating memoranda during the opinion-writing process address policy considerations. These remarks include statements about legal principles the Court should adopt, courses of action the Court should take, or a justice’s beliefs about the content of public policy. Finally, scholars address the interactions that take place between justices during the opinion-writing process (Maltzman, Spriggs, & Wahlbeck, 2000 ; Epstein & Knight, 1998 ; Murphy, 1964 ). They point to justices’ bargaining statements during the opinion-writing phase of a case to demonstrate that policy considerations are the driving force behind justices’ decisions.

Justices Are Strategic

The attitudinal model of Supreme Court decision-making suggests that justices are unconstrained in their ability to vote for their most preferred policy outcomes because they enjoy life tenure (Segal & Spaeth, 2002 ). In other words, because justices do not face election or retention, and because they usually do not have higher political ambitions, they can vote for their most preferred outcomes without consequence. In contrast, the strategic model suggests that, although they pursue policy goals, justices cannot always make decisions that conform perfectly to their preferences. Rather, because five justices must usually agree on a decision to set precedent justices must pay particular attention to the preferences, and likely actions, of their immediate colleagues. In short, Supreme Court justices alter their behavior in order to achieve their goals within the context of making decisions by majority rule.

A recent, yet rich, literature explores the extent and impact of internal bargaining between justices (see, e.g., Ringsmuth, Bryan, & Johnson, 2013 ; Johnson, Spriggs, & Wahlbeck, 2005 ; Maltzman, Spriggs, & Wahlbeck, 2000 ; Caldeira, Wright, & Zorn, 1999 ; Epstein & Knight, 1998 ). These works are progeny of Murphy ( 1964 ), who argued that justices are rational actors and act as such when deciding cases. The reason for this is obvious, as Murphy notes: “Since he shares decision making authority with eight other judges, the first problem that a policy oriented justice would confront is that of obtaining at least four, and hopefully eight, additional votes for the results he wants and the kinds of opinions he thinks should be written in cases important to his objectives” ( 1964 , p. 37).

While Murphy did not systematically test his theory, others have done so. For example, in an analysis of Justice Brennan’s and Justice Marshall’s private papers, Epstein and Knight ( 1995 ) demonstrate that over 50% of cases in one sample contained one or more bargaining statements between the justices. 5 In a later monograph, Epstein and Knight conclude that, “law, as it is generated by the Supreme Court, is the result of short-term strategic interactions among the justices and between the Court and other branches of government” ( 1998 , p. 18).

Wahlbeck, Spriggs, and Maltzman ( 1998 ) support these findings in their empirical analysis of opinion circulation on the Court. They find that an opinion goes through more drafts as the ideological heterogeneity of a majority coalition increases, as the number of suggestions given to the opinion writer by other justices increases, as the number of threats made to the opinion writer increases, and as the number of times other justices say they are yet unable to join an opinion increases. This suggests to Wahlbeck et al. that, “Opinion authors’ actions are shaped by the interplay of their own policy preferences and the actions of their colleagues” (p. 312).

Wahlbeck and his colleagues also find evidence that the decision to join a majority opinion is a strategic choice as well ( 1998 ). Specifically, they demonstrate that the decision to join is determined by how acceptable a majority opinion is to a specific justice, whether that justice can attain concessions from the opinion writer, and the past relationship between the opinion writer and the justice deciding whether to join. Finally, Maltzman, Spriggs, and Wahlbeck ( 2000 ) provide evidence that how the chief justice assigns opinions, how justices respond to initial opinion drafts, and how coalitions form are all processes grounded in strategic interaction. 6 This means that the process through which the Court makes decisions is a product of interactions and interdependencies between the justices. If, on the other hand, justices simply voted for their most preferred outcomes, there would be no evidence of bargaining and accommodation behind the scenes of the decision-making process.

More recently Black, Schutte, and Johnson ( 2013 ) and Johnson et al. ( 2005 ) demonstrate that justices use the rules of the game in a strategic manner. The former analyze how a justice can use threshold issues to keep the Court from deciding a case far from her preferred outcome. 7 In addition, Johnson and his colleagues find that chief justices (as well as senior associate justices) can and do manipulate the voting rules during the Court’s conference discussions to move a decision closer to their preferred outcomes. Both of these recent works extend and enhance empirically the theoretical concept that justices are strategic political actors.

Justices Account for Institutional Rules

The final tenet of our account suggests that, although justices are goal-oriented and consider their colleagues’ preferences when making decisions, they must also account for the institutional context within which they decide cases (Slotnick, 1978 ; Danelski, 1978 ; Maltzman & Wahlbeck, 1996 ). Institutions are the rules (either formal or informal) that structure interactions between social actors (Knight, 1992 ). In the context of the Court, legal institutions may constrain a justice’s ability to make certain decisions. That is, the “rules of the game” may prevent the justices from always making decisions that equate with their most preferred outcomes. The reason for this is simple: Supreme Court justices comply with institutional rules and norms (like precedent) because the Court must at least have the aura of acting as a legal, nonpolitical, institution (Hoekstra & Johnson, 2003 ; Epstein & Knight, 1998 ; Black & Owens, 2012 ).

For instance, Knight and Epstein ( 1996 ) argue that justices adhere to the norm of respecting precedent. While their findings are far from general (they analyze only 13 cases), the evidence is nonetheless compelling. Indeed, if respect for precedent were not a norm, then Knight and Epstein would not have found evidence that the justices frequently discuss past cases in their private deliberations. That the justices make such references to precedents in private memos suggests that they act as if they, themselves, are constrained to follow these decisions. The question, however, is why do the justices feel constrained by precedent? For Knight and Epstein the answer is simple: “compliance with this norm is necessary to maintain the fundamental legitimacy of the Supreme Court” ( 1996 , p. 1029). In other words, they argue that if the Court frequently ignored its own legal precedents its credibility as a judicial institution might be questioned, and it could potentially lose legitimacy—its main source of power.

Respecting precedent is an informal norm, but the Court must also follow certain formal rules such as those set out in the Constitution. Because the Constitution gives Congress the power to override Supreme Court decisions, the justices must account for the preferences of Congress when deciding where to set policy in a particular area of law (see, e.g., Clark, 2009 ; Ringsmuth & Johnson, 2013 ). Other codified rules are found in Article III of the Constitution; these include the Court’s jurisdiction to hear certain cases, 8 the requirement that a party must have standing ( Flast v. Cohen [ 1968 ]) to be heard in the Supreme Court, and that a case must be justiciable before the Court will consider ruling on it. 9

Four key aspects of the Court’s decision-making process are considered: agenda setting, oral arguments, conference, and opinion writing. Each demonstrates quite clearly that justices on our nation’s highest court are strategic actors.

Agenda-Setting Process in the U.S. Supreme Court

The U.S. Supreme Court is a passive institution and must wait for cases to come to it. In other words, the justices cannot introduce legislation like members of Congress. 10 However, as strategic decision makers, justices can do encourage litigants to submit cases presenting a particular question or issue area (see, e.g., Hausseger & Baum, 1999 ). The process through which cases are placed on the Court’s docket is briefly discussed. Research that focuses on the key rule that governs the Court’s agenda-setting process—the Rule of Four—is presented.

A party who loses in a lower federal court or in a state supreme court (if the case involves a federal question) may appeal to the U.S. Supreme Court. 11 When the appeal, or petition, is submitted, the clerk of the Court provides notice to the respondent (i.e., the winner in the lower court). The respondent has the option to respond, waive right of response, or do nothing at all. Most respondents choose the first option, and therefore both parties file briefed (written) legal arguments as to why the Court should or should not hear the case. 12 These briefs are then distributed to the justices’ chambers for review. Over time there has been a clear increase in the number of petitions submitted to the Court. In fact, there has been a five-fold increase in the number of petitions submitted between 1935 and 2015 . At the same time, while the number of cases granted review increased dramatically through the late 1970s this number has fallen just as precipitously between then and the present day.

Once the parties submit their cert. briefs, the first hurdle to winning review by the Court is making the “discuss list.” This list includes all petitions for review the justices will discuss and formally vote on during their weekly conference meetings. The chief justice creates the first draft of the discuss list. 13 Any associate justice can add a petition to the chief’s list but he or she may not remove a case already on the list. 14 While there are little data on the Court’s agenda-setting (or cert. process) the justices do discuss a large number of possible cases each term. For instance, over eight terms between 1986 and 1993 the Court discussed approximately 800 petitions per term (Black & Boyd, 2013 ).

Conference voting at the cert. stage is, like voting on case outcomes, sequential. The justice who places a case on the discuss list speaks first and usually offers a justification for why a petition should be granted review. From there the nine vote on whether to review the case. They do so in descending order of seniority with the chief justice considered the most senior justice. It takes four votes to grant review and if four votes are not forthcoming the Court denies the cert. petition. In other words, the Court will not hear the case. Ultimately, this means the lower court decision remains the law. That said, such a denial does not mean the justices necessarily agree with the lower court decision. Rather it simply means they could not agree to hear the present case.

The Rule of Four

As noted, it takes four votes for the Court to hear a case. This important institutional rule is unique because it allows a minority of justices to both set the Court’s agenda and to change, rather than simply preserve, the status quo. 15 That is, by granting a hearing and by then issuing a ruling on a case from a lower court, the Supreme Court sets national doctrine by either applying the lower court’s ruling to the entire country or by reversing the ruling of the lower court altogether. This is an important power for two main reasons. First, it acts as a sharp constraint on majority tyranny at the Court’s agenda-setting stage. As Kurland and Hutchinson ( 1983 , p. 645) put it, “The rule of four is a device which a minority of the Court can impose on the majority a question that the majority does not think it appropriate to address.” The potency of this rule is not lost on the justices. As Justice Brennan ( 1973 ) put it, choosing cases is “second to none in importance.” It also clearly worries at least one former justice. As John Paul Stevens ( 1983 , p. 19) pointed out: “Every case that is granted on the basis of four votes is a case that five members of the Court thought should not be granted. For the most significant work of the Court, it is assumed that the collective judgment of its majority is more reliable than the views of the minority.”

The historical record on the Rule of Four is incomplete (Stevens, 1983 ; Revesz & Karlan, 1988 ; O’Brien, 1997 ; Epstein & Knight, 1998 ; Hartnett, 2000 ). We know, however, that its origins come sometime after passage of the Evarts Act of 1891 . This law established the circuit courts of appeals and codified that no right of appeal to the Supreme Court existed. The result was that the justices had much greater discretion over their appellate docket. As Hartnett ( 2000 ) put it, “thus was born the then revolutionary, but now familiar, principle of discretionary review of federal judgments on writ of certiorari.” Although there is evidence justices relied on a minority certiorari rule through the late 1800s and early 1900s, it was not until 1925 that its use became public when Justice Willis Van Devanter appeared before the House Judiciary Committee during its hearings on the Judges’ Bill. 16

Van Devanter’s purpose was to “assure Congress that increased control over its [the Court’s] own docket would not lead to arbitrary dismissal of cases” (Robbins, 2002 , p. 12).

More specifically, to assuage the worry that the Court would reject cases that could be potentially important, Van Devanter explained that:

We always grant petitions when as many as four think that it should be granted and sometimes when as many as three think that way. We proceed upon the theory that, if that number out of nine are impressed with the thought that the case is one that ought to be heard and decided by us, the petition should be granted. ( 2002 , p. 12)

A decade later, Chief Justice Hughes reiterated Justice Van Devanter’s response to the congressional concern that the Court may not take cases important for the law because of the justices’ discretion over their docket. In a speech before the American Law Institute he noted, “we are liberal in the application of our rules and certiorari is always granted if four justices think it should be, and, not infrequently, when three, or even two, justices strongly urge the grant” (Hughes, 1937 , p. 459). The point is that for at least the past 80 years a minority of the justices has controlled the Court’s agenda.

Empirical work on the Rule of Four focuses almost exclusively on how it affects the size of the Court’s docket each term. For instance, Stevens ( 1983 ) argues that the Rule of Four comes into play in about 25% of all cases that make the discuss list. He concludes that many of these cases are probably unimportant, and should therefore be left off of the plenary docket. O’Brien ( 1997 ) obtains similar results in his analysis of Justice Marshall’s docket books for the 1990 term. He finds that 22% of cases decided during this term were granted certiorari with only four votes.

Perry and Carmichael ( 1985 –1986) take the question of case selection a bit further. They test whether the Rule of Four protects “important” cases. By their operationalization this does not happen because most important cases almost always receive at least five votes for certiorari. Perry and Carmichael point out, however, that if the Court is interested in taking “nearly significant” cases it should not abandon its long-lasting rule.

While Perry and Carmichael suggest the Rule of Four protects somewhat important cases, the normative implication of Stevens’s and O’Brien’s findings is that the Court should consider abandoning this rule. For Stevens, the quarter of all cases docketed with fewer than five votes presented an additional and unnecessary burden on him and his colleagues. Indeed, Stevens believes the Court should decide only the most important cases, and therefore the problem of overworked justices could be abated by taking only those cases with a majority vote on certiorari.

Beyond the debate between legal scholars and justices, the Rule of Four has drawn scorn from the mass media as its incompatibility with majority rule has come to light in death penalty cases (Liptak, 2007 ). A prisoner sentenced to death needs the vote of a simple majority, or five justices, to stay or postpone his or her execution, yet the Rule of Four allows a minority of justices to place a prisoner’s appeal on the docket. This sets up the possibility that the Court could simultaneously grant a prisoner’s petition to appeal his or her sentence while refusing to stay the execution that would, in the legal lexicon, “moot” the case if the prisoner was subsequently executed.

Certainly the normative implications of the Rule of Four are interesting, but this line of work fails to address a fundamental question: Why would a minority coalition want to place a case on the docket when five of their colleagues could either vote to dismiss the case as improvidently granted (DIG) at the plenary stage, or simply outvote them at the merits stage? 17 After all, on the surface the Rule of Four is incompatible with the rule that a simple majority of justices can vote to dismiss. As such, a preference cycle could exist whereby a case was continually granted and then dismissed (Riker, 1982 ). Two explanations have been given in the literature for why this does not happen on the Court. Regarding DIGs, Epstein and Knight ( 1998 , p. 120) suggest a norm exists whereby the five justices who voted against certiorari cannot form the five-member coalition to DIG a case. While these scholars point out that this norm can be and has been violated, justices do not often do so. The result is that Rule of Four cases ultimately receive treatment similar to cases granted review with five or more votes.

With respect to the latter point, scholars have offered some answers, albeit not theoretically satisfying ones. For instance, in her analysis of case selection based on Justice Burton’s docket sheets Provine ( 1980 , p. 157) finds, “that the desire to be agreeable and the leadership responsibility felt by chief justices are the primary reasons some justices vote oftener for review in four-vote cases than otherwise.” She therefore concludes that, “The hypothesis that four-vote cases reflect the presence of coalitions seeking review on the merits receives no support in this analysis” (Provine, 1980 , p. 158). This conclusion is based on the fact that the two most frequent members of four-vote certiorari coalitions were Justices Burton and Clark, both of whom were considered “affable and outgoing in their personal relationships” (p. 156). The point for Provine ( 1980 ) is that there seems to be nothing strategic about Rule of Four cases, and that the key explanation for justices joining these minority coalitions comes from a sense of friendship, from wanting to be deferential to their colleagues, or from a desire to lead the Court fairly (for chief justices).

The analysis provided by legal scholars is both theoretically and empirically unsatisfying. As such, several political scientists have attempted to systematically analyze the Rule of Four. In his seminal work on Supreme Court agenda setting, Perry ( 1991 ) argues there are times when justices engage in strategic behavior during the certiorari stage, and the Rule of Four may encourage such behavior. Perry ( 1991 , p. 98) also provides evidence that there are times when a coalition of four will not force a case onto the docket because the justices in that coalition know they will surely lose on the merits strategy known as a defensive denial.

Epstein and Knight ( 1998 ) go a step further than Perry by providing convincing evidence to support the argument that the Rule of Four can be used for strategic purposes. As they point out ( 1998 ), “The Rule of 4 invites forward thinking. Policy oriented justices know that if they are to attain their goals they must take those cases they believe will lead to their preferred outcomes and reject those that will not.” The key for them, then, is that justices can use this rule to make “strategic calculations throughout the decision making process” (p. 121).

In the end, this part of the Court’s decision-making process plays a vital role for the justices. Indeed, it is clear that decisions made at this stage of the process have a great deal to do with the decisions the justices make on the merits of a case.

Decision on the Merits: Litigant Briefs

Litigants lucky enough to have a case accepted for review by the Supreme Court submit a second round of briefs. These briefs are meant to convince the justices who should win the case. The rules surrounding these briefs on the merits are discussed along with the research that seeks to explain the extent to which written arguments affect the decisions justices make.

The Rules that Govern Supreme Court Briefs

“Rules of the Supreme Court of the United States” is an 83-page document created by the Court that provides, among other things, several sections of detailed information on how to properly file, format, and write a brief. The real paper-shuffling begins once the Court has accepted a case: from this point the petitioner has 45 days to file a merits brief, and the respondent’s brief is required 30 days later. Petitioners are allowed a reply to the respondent’s brief, but it must be submitted at least one full week before oral arguments are heard, and no more than 30 days after the respondent’s brief is filed. Litigants may request extensions on these time frames; however, “an application to extend the time to file a brief on the merits is not favored” (Rule 25.5).

In addition to a rigid time frame, the Court also outlines specifics for the formatting and length of briefs. As dictated by Rule 33, all briefs (merits, response, amicus ) are printed on 60-pound paper in booklet format measuring 6 1/8th inches by 9 1/4th inches. These booklets are then bound by saddle stitch or perfect binding, and covered with 65-pound card stock paper of the appropriate color. Merits briefs for both petitioner and respondent are limited to 15,000 words and covered in light blue or red paper, respectively. The petitioner’s reply brief is not to exceed 6,000 words and should have a yellow cover. Each brief may include appendixes of unlimited length, however additional arguments should not appear in these appendixes. 18

One source of briefs not yet discussed is amicus groups. Amici , or friends of the Court, are most often interest groups or established organizations that file a brief in support of either side. 19 Such briefs are limited to 9,000 words, and should “bring to the attention of the Court relevant matter[s] not already brought to its attention by the parties” (Rule 37.1). Although limited in words, there is no limit to the number of separate amicus groups that can file. In the 2012 term, for example, multiple amicus briefs were filed in 67 of the 76 cases granted review. Amicus participation ranged from zero to 97 briefs—the former occurring in only two cases, with the latter in support of Hollingsworth v. Perry ( 2013 ), one of the term’s two same-sex marriage cases.

Finally, Supreme Court rules dictate that forty copies of every single brief (petitioner, respondent, reply, and amicus ) are delivered to the Court in hard copy, as per the rules explained previously. Considering the hundreds—if not thousands—of pages filed for every case appearing before the Court, such strict rules are necessary to maintain any semblance of order and organization. With so much time, effort, and paper spent on brief writing—and subsequent reading—the extent to which briefs affect outcomes is considered.

Do Briefs Affect Case Outcomes?

Litigant and amicus briefs serve two broad purposes: to provide information to the Court, and to set the bounds of policy space from which legal opinions can be drawn. The informational nature of briefs is evident given the pure volume provided to the Court, but what sort of information is contained in these myriad pages? Johnson ( 2004 ) offers such insight; he provides a breakdown of issues briefed in a random sample of 75 Burger Court civil liberties cases. Note that litigant briefs most often address policy and constitutional issues—this is not surprising given the description of justices as seekers of policy preferences (Epstein & Knight, 1998 ; Segal & Spaeth, 2002 ). Indeed, these two issues dominate litigant briefs and account for over 70% of all briefed issues.

Further, when both amicus and litigant participation are considered, the Court still receives the most information regarding policy and constitutional issues. Note, however, there are clear differences in the types of information each brief provides. Specifically, amicus briefs refer more often to precedent and external actors. This is, again, unsurprising as amici are by definition an external actor; it would make sense that their briefs would inform the Court on their preferences as well as additional precedent that would support their preferences.

Next, existing research demonstrates that legal briefs submitted to the Court often set the boundaries of a case by framing the issues for the justices (Wahlbeck, 1998 ). To this end, the legal model of decision-making posits that justices care about the law and are bound to it, and scholarly work in this area agrees. For example, Epstein and Kobylka ( 1992 ) examine legal change in the jurisprudence of abortion and death penalty cases. While they consider factors such as public opinion and a changing political and social environment, Epstein and Kobylka ultimately conclude, “it is the law and legal arguments as framed by legal actors that most clearly influence the content and direction of legal change” ( 1992 , p. 8). Later work by Epstein, Segal, and Johnson ( 1996 ) examines briefs and opinions, concluding that the Court follows the doctrine of sua sponte —a norm disfavoring issue creation during opinion writing. Finally, Corley ( 2008 ) uses plagiarism software to detect when majority opinions “borrow” phrases and sentences from litigant briefs. She finds the quality of a brief—as defined by the experience of the writing attorney—positively affects the chances a justice will “borrow.” Taken together, this line of research suggests that briefs directly impact the decision-making process by providing the Court with valuable information, and by constraining their choice-set by setting policy boundaries.

Decisions on the Merits: Oral Arguments

Once the Supreme Court grants review in a case the parties file legal briefs to convince the justices how to decide. In addition to the briefs, the justices sit for oral arguments. During these proceedings attorneys for each side of a case present their best arguments to the justices in an effort to convince the Court to rule in a particular way. This section considers the role justices play in this part of their decision-making process.

In the Supreme Court’s early days great lawyers such as Daniel Webster, John Calhoun, William Pinkney, and Henry Clay often appeared before the justices. In this time period oral arguments were elaborate oratories but, more important, they often provided the justices with their only source of information about a case: briefs were rarely if ever submitted and outside parties did not submit amicus curiae (friend of the Court) briefs as they do today. The result was that the justices placed no time limitation on the argument sessions. As such, advocates sometimes spoke for many hours over multiple days. In one case, for instance, Davis ( 1940 ) points out that Webster and his rival argued for a full ten days. In stark contrast to contemporary arguments, historians suggest that the justices rarely interrupted the advocates with questions or comments (compare Warren, 1922 with Johnson et al., 2009 ).

Certainly, hearing arguments over many days was possible because the Court heard so few cases in its early days. However, the Court’s rising caseload soon made such indulgences impossible. In addition, it seems that, at some point, the justices could no longer handle such long sessions. As one biographer put it, Chief Justice John Marshall complained of boredom (Beveridge, 1929 ) and Justice Joseph Story found the arguments “excessively prolix and tedious” (Hughes, 1928 ). Just as certainly as days-long arguments were possible for the early Court, such a model was untenable as the justices’ caseload increased. As a result, in 1849 they instituted Rule 53, which limited each attorney to a two-hour argument (Frankfurter & Landis, 1928 ). The justices simultaneously required the first written arguments, consisting of an abstract of points and authorities (Frankfurter & Landis, 1928 ). Today, and since 1970 , the time allotted for these has been limited to 30 minutes per side.

The modern time constraints on oral arguments may be due to the fact that the justices have so much information at their disposal prior to these open court sessions. Indeed, today they possess litigant briefs (Epstein & Kobylka, 1992 ), briefs amicus curiae (Spriggs & Wahlbeck, 1997 ), briefs on certiorari (Caldeira & Wright, 1988 ), media accounts (Epstein & Knight, 1998 ), and lower court opinions. Further, unlike the Court’s early days, when the justices were transfixed by the great orators (or put to sleep from boredom) they largely control the argument sessions today. Specifically, one analysis of 347 cases over four recent terms included 43,000 utterances and 1.4 million words spoken by the justices (Black et al., 2009 ). It seems then, in modern cases, the justices now speak as much or more so than do the attorneys. The question is whether such questioning has some bearing on how the justices decide.

Do Oral Arguments Affect Justices’ Decisions?

As with the other aspects of the decision-making process, evidence accumulated over the last decade establishes that, generally, oral arguments play an integral role in the Court’s decision-making process (Johnson, 2004 ; Wrightsman, 2008 ). First, as policy-oriented political actors, justices are clearly concerned with questions of policy. Johnson ( 2004 ) demonstrates that in cases without amicus participation, 40% of the Court’s questions focus on policy, and this increases to 43% when amici participate. Second, justices spend a great deal of time asking questions about the preferences of actors external to the Court (Johnson, 2004 ). Indeed, in his sample of cases Johnson ( 2004 ) shows that 1,159 (36%) questions fall into this category when amici are not present in a case. This total is similar when amici participate: 787 (34%). Finally, justices raise questions about institutional constraints (precedent and threshold issues) they may face, but fewer of them than about the other issues. Specifically, when amici participate, 13.7% of all questions focus on precedent or threshold issues, and 13.2% focus on these issues in cases without amici .

Beyond the information they provide to the justices, there is evidence that the quality of oral arguments forwarded by attorneys during these proceedings affects justices’ votes (Johnson, Wahlbeck, & Spriggs, 2006 ). Indeed, even justices predisposed to vote for a particular side (based on their ideological predilections) tend to vote more often for the side that offers better arguments in open Court. Finally, there is mounting evidence that, during oral arguments, justices foreshadow how they will decide (Shullman, 2004 ; Roberts, 2005 ; Johnson, Black, Goldman, & Treul, 2009 ; Black, Wedeking, & Johnson, 2012 ). Such signals emanate from the number of questions justices ask the attorney for each side of the dispute as well as from the emotive tenor of these questions. When justices give one side a harder time (by asking more questions) or when they ask that side questions using less pleasant language, it is more likely to lose the case (while this does not necessarily show causality the correlation between these phenomena is quite robust).

Justices’ conversations with attorneys are not the only discussions that take place during oral arguments. Rather, they are prone to speak to one another as well. Anecdotally, Wasby et al. argue that, “it is not surprising that the judges would use part of the oral argument time for getting across obliquely to their colleagues on the bench arguments regarding the eventual disposition of a case” (Wasby, D’Amato, & Metrailer, 1977 , p. xviii). They conclude elsewhere that, “Another, less noticed function is that oral argument serves as a means of communication between judges” (Wasby, D’Amato, & Metrailer, 1976 , p. 418). Recent work corroborates these anecdotal findings. Black et al. ( 2012 ) provide systematic evidence that justices speak to (and often speak over) one another, listen to their colleagues’ questions and comments, and use the oral arguments to predict the outcome of the case.

Overall, despite the conventional wisdom through the last decade of the 20th century, scholars have now made clear that the hour-long sessions in open Court can and do affect the decisions justices make. They clearly elicit information from the attorneys that helps them do so. In addition, they make their positions clear with how they ask questions and also speak to each other through their questions and comments. What happens once the justices retire back to the confines of the Marble Palace?

Decisions on the Merits: Conference Discussions

Chief Justice Roberts has said publicly that, “We [the Court] are the most transparent branch of government. Everything we do that has an impact is done in public. . . . You see our work in public at the Court. Our decisions are out there” 20 Interestingly, the chief’s contention is the fact that, unlike the elected branches, the Court issues explicit public justifications (in the form of written opinions) for the decisions they make. The problem with this argument is that the public aspect to which the chief refers is only the end product. With the exception of the oral arguments (see Decisions on the Merits: Oral Arguments) the remainder of the decision-making process occurs behind closed doors in the marble palace. The justices’ conference discussions and why these discussions are important for how justices decide are examined.

Overview of Conference

While the justices sit for oral arguments on Mondays, Tuesdays, and Wednesdays during the term, private conference discussions take place on Wednesdays and Fridays. These discussions serve two purposes—to choose cases from the discuss list to set for future arguments and to vote on the cases that have already been argued.

Because the justices meet in conference twice a week, they use Wednesday conferences to discuss the merits (outcomes) of cases heard Mondays and Tuesdays. Friday conference is therefore reserved for cases argued on Wednesdays. 21 These meetings, held in the conference room that adjoins the chief’s chambers, are completely private. That is, nobody is allowed in the room except the justices. If something is needed from outside the room the most junior justice calls to make the request. 22

When conference begins the chief justice presents the facts of the first case. From there he offers his personal view of the case and then casts his vote. 23 When the chief is done the associate justices offer their views and votes in order of seniority. That is, the most senior associate justice presents and votes next with each justice doing so until the Court’s newest member finishes the discussion. 24 Usually the justices have a fairly good idea of how they will vote in the case, but there are times when they are less certain. 25 The justices repeat this process for each case argued during the current week.

The Importance of Conference Discussion and Votes

Scholars have emphasized for decades that conference votes are only the tip of the iceberg for the business the justices conduct (see, e.g., Epstein & Knight, 1998 ). However, the only data normally available to scholars are the conference votes. 26 Little information exists about the legal and policy issues the justices discuss during conference, which means scholars have largely ignored this part of the Court’s decision-making process. Despite the paucity of research in this area there is evidence to suggest the justices discuss the key aspects of cases they decide. Johnson ( 2004 ) demonstrates that, during conference, the justices clearly pick up on issues briefed by the parties and on issues discussed during oral arguments. More specifically, justices discuss policy options and key precedents during their private conference discussions. Similarly, Knight and Epstein ( 1996 ) find that the justices clearly discuss precedent at conference. For them, this suggests the justices believe they are bound by the norm of respecting past decisions. In short, while scholars do not yet have a full picture of what transpires during conference, these studies provide insights that have, until the past decades, eluded scholars and Court watchers alike.

Beyond the discussions about the specific issues the justices must decide, conference is important because how the justices vote determines who will ultimately write the majority opinion in a case. If the chief justice votes with the majority at the end of a case discussion he has the authority to choose who write the majority opinion. 27 This prerogative helps him influence the Court’s agenda because he can select either an author whose opinion is close to his own preferences or one who will minimize the prospective policy loss if the chief’s preferred outcome does not prevail (Epstein & Knight, 1998 ; Maltzman, Spriggs, & Wahlbeck, 2000 ). More specifically, Maltzman, Spriggs, and Wahlbeck ( 2000 ) demonstrate that the justice who assigns the opinion has some power to set the agenda for the majority coalition because the writer gets the first move in the bargaining process. The chief exercises this discretion and guides the opinion toward his preferred position by assigning it to ideologically proximate justices (or to himself), especially in important cases. In other words, although the chief justice is constrained by norms, like equitable distribution of assignments, he has the power to choose who will articulate the Court’s opinion and the lens through which a case will be decided. 28

There is clear evidence that chiefs (and sometimes senior associates) act strategically to ensure the opinion assignment power. Johnson, Spriggs, and Wahlbeck ( 2005 ) note that Chief Justice Warren Burger was renowned for casting votes at conference that would allow him to control the Court’s agenda through opinion assignment. Indeed, Burger often changed his initial votes to join the majority coalition, cast “phony votes” by voting against his preferred position, and sometimes declined to express an initial position at conference (see Woodward & Armstrong, 1979 ; Epstein & Knight, 1998 ). This behavior led one critical justice to point out that, “all too damned often the Chief Justice will vote with the majority so as to assign the opinion, and then he ends up in dissent” (Schwartz, 1990 , p. 14).

Although many claimed that Burger attempted to manipulate the Court’s agenda through opinion assignment, he was probably not the first chief to vote in this manner during conference. Indeed, Murphy ( 1964 ) traces sophisticated voting to control opinion writing to John Marshall. Although short on supporting evidence, some argue that Marshall wrote opinions “even in cases where he dissented” (Schwartz, 1993 , p. 152). As Murphy ( 1964 , pp. 84–85) hypothesized of chief justices when they were the first to speak and the last to vote, “Thus, before he finally commits himself, he knows where each Justice stands—at least for the present—and which side will most probably win. If his own views are going to be in the minority, he can vote with the majority and retain the opinion-assigning authority.”

Data drawn from the archives of Justice Lewis F. Powell (at Washington and Lee University) illustrate one particular strategy chiefs may use during conference—passing on their chance to cast the initial vote. Johnson et al. ( 2005 ) analyzed how often each justice passed on an initial vote in a sample of cases decided during the Burger Court. From their data it is clear that Burger, and then to a lesser extent, Rehnquist (when he became chief in 1986 ) passed on the initial vote significantly more often than associate justices. In fact, Burger was more than twice as likely to pass as any other justice on the bench. Rehnquist is also interesting as he passed 10 times more often once he was elevated to chief. Certainly the senior associate justices (Justice Douglas then Justice Brennan in this sample) passed more often than their colleagues (with the exception of Justice Stewart) but not nearly as often as chiefs.

The bottom line is that conference is a time when the justices finally speak to one another candidly about a case and cast their preliminary votes. While scholars have given this part of the Court’s decision-making process short shrift it is clearly important for how the justices decide. In fact, it sets the stage for the final part of the process—opinion writing.

Decisions on the Merits: Opinion Writing

After conference the writing process might seem straightforward, but this is not always the case. Keeping in mind that a majority opinion author must write an opinion that pleases at least four other members of the Court, the task is best described as a dynamic and malleable process whereby justices strategically maneuver in an attempt to satisfy their policy preferences (Maltzman, Spriggs, & Wahlbeck, 2000 ). In order to fully explicate the complexities of opinion writing, the process is described, the two main (and competing) models of opinion writing that define key actors who influence the final content of the majority opinion are summarized, and a case study of Gannett v. DePasquale —an exemplar of the opinion-writing and decision-making process—is presented.

Opinion Writing: A Step-by-Step Guide

Due to the volume of work and time constraints faced by the Court, many justices in the modern era use their law clerks to draft initial versions of opinions (Wahlbeck, Spriggs, & Sigelman, 2002 ; Peppers, 2006 ; Peppers & Zorn, 2008 ). Clerk’s legwork in hand, the opinion author prepares a first draft and, once complete, circulates this draft to the Court. At this point, no justice is bound by her stated policy preference or vote at conference; she instead has four options. She may join the opinion immediately, suggest some sort of change—via suggestion or threat, announce she is waiting before she takes any action, or circulate a concurrence or dissent (Maltzman, Spriggs, & Wahlbeck, 2000 ). The modal category is “join” (Maltzman, Spriggs, & Wahlbeck, 2000 ).

When a justice levels a threat or indicates a willingness to circulate a separate opinion the majority opinion author takes these indications particularly seriously. In particular, the existence of a well-crafted dissenting opinion has the potential (however small) to steal the majority, especially if it can satisfy the demands of the median justice (Lax & Cameron, 2007 ). Because justices wish to see their policies etched into law, majority opinion writers therefore seek to mitigate such potential threats. Warding off a dissenting opinion, however, can be difficult. Lax & Cameron ( 2007 ) employ game theoretic models to demonstrate the impact of time and effort costs on a would-be dissenter. In short, a majority opinion author must craft a sufficiently high-quality opinion that captures the median justice in order to prevent potential dissenting opinions from gaining traction.

No additional effort or response is necessary from the author when a justice immediately agrees to join his opinion. However, gaining the votes of justices who suggest changes to an opinion or who announce they are waiting, is a different matter. In these instances, scholars disagree as to which justices exert the most influence over the opinion author, and therefore over legal policy.

Opinion-Writing Models

Scholars who investigate an author’s plight to command a majority often model opinion content as a corollary of ideology, pointing to two key players: the Court’s median member and the opinion author herself. The bench median model mirrors legislative models of the median-voter theorem in assuming policy converges on the median voter; it is, after all, this voter who must be captured in order to gain a majority and thereby create policy (Black, 1958 ). Applied to Supreme Court scholarship, the median justice is the swing vote and so may reject an opinion that falls too far from his ideal point. In fact, a majority opinion that does not perfectly satisfy the median justice allows the minority coalition an opportunity to craft such an opinion and capture this essential swing vote (Lax & Cameron, 2007 ). Extensive work by Spriggs and Hansford ( 2001 ) provides empirical support for this model. Their findings indicate that, indeed, the Court median exerts influence over the majority opinion.

Beyond the Court median, the opinion author exerts influence on the substantive outcome of a case. This agenda-control model stresses the importance of an opinion author in pulling opinion policy away from the median and closer to his own ideal point (Murphy, 1964 ; Rohde, 1972 ; Rohde & Spaeth, 1976 ; Slotnick, 1978 ; Slotnick, 1979 ; Brenner & Spaeth, 1988 ). Recent work by Bonneau, Hammond, Maltzman, and Wahlbeck( 2007 ) adds to this body of work by incorporating a legal status quo. In this model, a justice’s decision to join an opinion is operationalized as a simple choice between the existing majority opinion and the lower court decision: any justice preferring policy offered in the majority opinion will sign on.

In sum, the rich body of literature on opinion writing provides ample evidence that the opinion author and the Court median exert particular influence over opinion content, and therefore policy. This is not to say the other seven justices are moot—to the contrary, the following example demonstrates the impact any single justice can have in this dynamic process.

Opinion-Writing as a Dynamic Process

Examining historical documents available for Gannett Co. v. DePasquale , 443 U.S. 368 ( 1979 )—a case involving freedom of the press and courtroom access—gives clear insight to this dynamic process. 29 To begin, the majority opinion was assigned to Justice Blackmun by Justice Brennan—this means that Justices Burger and Stewart were not in the majority when votes were counted at conference, but that both Brennan and Blackmun were. 30

On the 4th of April, Blackmun circulated a first majority opinion draft. The very next day Brennan signed the opinion after making a few minor suggestions, Stewart made known his intentions of writing a dissenting opinion, White declared he would await Stewart’s dissent before signing any opinion, and Stevens attempted to bargain with Blackmun. Specifically, Stevens believed Blackmun’s opinion went too far in favor of First Amendment rights (freedom of press), rather than Sixth Amendment rights (right to a speedy and public trial), and he was hoping Blackmun would back off this stance. In the meantime, Marshall joined Blackmun’s opinion and 13 days later Stevens joined Stewart’s dissenting opinion on the exact day it was circulated, noting, “I may add a paragraph of my own.” At this point, Blackmun was still two votes shy of commanding a majority.

Despite this deficit, Blackmun responded to Stewart’s dissent with, “The dissent merits a mild response. I shall circulate it later today.” Blackmun’s three-page response highlights the key differences in how each coalition wanted to set policy. Blackmun, along with Brennan and Marshall, wanted to set a clear legal ruling that carried a presumption of open access to trials as implied by the Sixth Amendment and considered preliminary hearings part of a trial. Stewart, and at this point, Stevens, felt the Sixth Amendment’s guarantee to a speedy and public trial was meant to protect the accused , not the public. Given this choice-set, and despite his earlier preference to await Stewart’s dissent, White joined Blackmun’s opinion creating a presumptive majority: Blackmun, Brennan, Marshall, White, and Powell. Although Powell had not yet declared any intentions, he had voted with this coalition at conference. This is not, however, how the majority opinion turned out.

On May 8th Chief Burger circulated a dissenting opinion, and also declared he would sign onto Stewart’s dissent with Rehnquist following shortly after. The following day, Powell sent a memo to Blackmun expressing doubts about how the majority opinion was taking shape. He too felt the crux of the issue was striking a correct balance between First and Sixth Amendment rights, but that Blackmun’s opinion tilted too far in favor of the press. Faced with these dichotomous policy choices, Powell eventually joined Stewart’s opinion and became the requisite fifth vote to transform that dissent into a majority opinion.

This example highlights two key aspects of the opinion-writing process. First, different justices employed different tactics in attempting to move policy closer to a preferred point. While White (the Court median) held out, some justices directly bargained Rehnquist and Brennan while others wrote separate opinions. Second, the central debate concerned specific aspects of policy, and not simply a decision to reverse or affirm the lower court’s ruling. This idea transcends the traditional liberal-conservative notion of decision-making to reveal a Court concerned with degrees and balancing rather than such simple dichotomizations.

The Frontiers of Court Research

The process by which the U.S. Supreme Court makes decisions has been the focus of a great deal of scholarly attention. Yet, there is more left to learn about our nation’s highest court. Scholars have only broken the surface of analysis about the Court’s most secretive meeting—the justices’ weekly conference. Further, there is growing debate about how the linguistic nature of justices’ words affects their decisions. While work has been done on how the language justices use during oral arguments impacts their decisions (Black et al., 2011 ; Johnson, Black, Goldman, & Treul, 2009 ) there is much work to be done. Indeed, scholars should focus on attorneys’ language during the arguments as well as in the briefs they submit to the Court (see, e.g., Corley, 2008 ). Further, scholars should consider how the choice of language in the Court’s opinions affects lower court decisions and how the public views the justices’ policy choices. In short, future work on the Court can and should continue to focus on the language of the law because it is the language that matters. In other words, how the Court rules (reverse or affirm) is simply not as important as the rules the justices set in their opinions. Linguistic analysis of our nation’s highest court is therefore the next frontier of judicial politics research.

U.S. Supreme Court justices are clearly political actors with policy preferences they seek to etch into federal law. However, they are limited in their ability to always reach their preferred outcomes by the fact that they do not make decisions in a vacuum and by the fact that rules and norms of behavior govern their decision-making process. While the Court is a unique institution, it is clear that it shares these characteristics with other courts within and beyond the United States.

Authorities Cited

• Bush v. Gore , 531 U.S. 98 (2000).
• DeFunis v. Odegaard , 416 U.S. 312 (1974).
• Flast v. Cohen , 539 U.S. 83 (1968).
• Gannett Co. v. DePasquale 443 U.S. 368 (1979).
• Hollingsworth v. Perry , 570 U.S. __ (2013).
• Hustler Magazine v. Falwell , 485 U.S. 46 (1988).
• Lawrence v. Texas , 539 U.S. 558 (2003).
• Longshoremen’s Union v. Boyd , 347 U.S. 222 (1954).
• Marbury v. Madison , 5 U.S. 127 (1803).
• National Federation of Independent Business v. Sebelius , 567 U.S. __ (2012).
• Shelby County v. Holder , 570 U.S. __ (2013).
• Baum, L. (1997). The puzzle of judicial behavior . Ann Arbor: University Of Michigan Press.
• Baum, L. (2001). The Supreme Court (7th ed.). Washington, DC: CQ Press.
• Beveridge, A. J. (1929). The life of John Marshall . Boston: Houghton Mifflin.
• Black, D. (1958). The theory of committees and elections . London: Cambridge University Press.
• Black, R. C. , & Boyd, C. L. (2013). Selecting the select few: The discuss list and the U.S. Supreme Court’s agenda-setting process. Social Science Quarterly , 94 (4), 1124–1144.
• Black, R. C. , & Owens, R. J. (2012). The Solicitor General and the United States Supreme Court . New York: Cambridge University Press.
• Black, R. C. , Schutte, R. A. , & Johnson, T. R. (2013). Trying to get what you want: Heresthetical maneuvering and U.S. Supreme Court decision making. Political Research Quarterly , 66 (4), 819–830.
• Black, R. C. , Treul, S. A. , Johnson, T. R. , & Goldman, J. (2011). Emotions, Oral Arguments, and Supreme Court Decision Making . Journal of Politics , 73 (2), 572–581.
• Black, R. C. , Wedeking, J. P. , & Johnson, T. R. (2012). Oral arguments and coalition formation on the U.S. Supreme Court: A deliberate dialogue . Ann Arbor: University of Michigan Press.
• Bonneau, C. W. , Hammond, T. H. , Maltzman, F. , & Wahlbeck, P. J. (2007). Agenda control, the median justice, and the majority opinion on the U.S. Supreme Court. American Journal of Political Science , 51 , 890–905.
• Brennan, W. J. (1960). State court decisions and the Supreme Court. Pennsylvania Bar Association Quarterly , 31 , 393–407.
• Brennan, W. J., Jr. (1973). The National Court of Appeals: Another dissent. University of Chicago Law Review , 40 (3), 473–485.
• Brenner, S. , & Spaeth, H. J. (1988). Majority opinion assignments and the maintenance of the original coalition on the Warren Court. American Journal of Political Science , 32 (1), 72–81.
• Caldeira, G. A. , & Wright, J. R. (1988). Organized interests and agenda setting in the U.S. Supreme Court. American Political Science Review , 82 (4), 1109–1127.
• Caldeira, G. A. , Wright, J. R. , & Zorn, C. J. W. (1999). Sophisticated voting and gate-keeping in the Supreme Court. Journal of Law, Economics, & Organization , 15 (3), 549–572.
• Clark, T. C. (1959). Internal operation of the United States Supreme Court. Judicature , 43 , 45–51.
• Clark, T. S. (2009). The separation of powers, court-curbing, and judicial legitimacy. American Journal of Political Science , 53 (4), 971–989.
• Corley, P. C. (2008). The Supreme Court and opinion content: The influence of parties’ briefs. Political Research Quarterly , 61 (3), 468–478.
• Cushman, R. E. (1929). Constitutional law in 1927–28: The constitutional decisions of the Supreme Court of the United States in the October term, 1927. American Political Science Review , 23 , 78–101.
• Danelski, D. (1978). The influence of the chief justice in the decisional process of the Supreme Court. In S. Goldman & A. Sarat (Eds.), American Court Systems: Readings in Judicial Process and Behavior . San Francisco: W. H. Freeman.
• Davis, J. W. (1940). The argument of an appeal. ABAJ , 26 , 895.
• Epstein, L. , & Knight, J. (1995). Documenting strategic interaction on the U.S. Supreme Court . Presented at the 1995 annual meeting of the American Political Science Association.
• Epstein, L. , & Knight, J. (1998). The choices justices make . Washington, DC: CQ Press.
• Epstein, L. , & Kobylka, J. F. (1992). The Supreme Court and legal change: Abortion and the death penalty . Chapel Hill: University of North Carolina Press.
• Epstein, L. , Segal, J. A. , & Johnson, T. (1996). The claim of issue creation on the U.S. Supreme Court. American Political Science Review , 90 (4), 845–852.
• Epstein, L. , Segal, J. A. , Spaeth, H. J. , & Walker, T. G. (2011). The Supreme Court compendium . Washington, DC: Congressional Quarterly.
• Eskridge, W. N., Jr. (1991a). Overriding Supreme Court statutory interpretation decisions. Yale Law Journal , 101 (2), 331–455.
• Eskridge, W. N., Jr. (1991b). Reneging on history? Playing the Court/Congress/president civil rights game. California Law Review , 79 (3), 613–684.
• Fang, S. , Johnson, T. , & Roberts, J. (2007). The will of the minority: The Rule of Four on the United States Supreme Court . Paper presented at the annual meeting of the Midwest Political Science Association.
• Ferejohn, J. , & Weingast, B. (1992). Limitation of statutes: Strategic statutory interpretation. Georgetown Law Review , 80 , 565–587.
• Frank, J. (1949). Law and the modern mind . New York: Coward-McCann.
• Frankfurter, F. , & Landis, J. M. (1928). The business of the Supreme Court . New York: Macmillan.
• Gely, R. , & Spiller, P. T. (1990). A rational choice theory of Supreme Court statutory decisions with applications to the State Farm and Grove City cases. Journal of Law, Economics, & Organization , 6 (2), 263–300.
• Hartnett, E. A. (2000). Questioning certiorari: Some reflections seventy-five years after the Judges’ Bill. Columbia Law Review , 100 , 1643.
• Hausseger, L. , & Baum, L. (1999). Inviting congressional action: A study of Supreme Court motivations in statutory interpretation. American Journal of Political Science , 43 (1), 162–185.
• Hensley, T. R. , Smith, C. , & Baugh, J. A. (1997). The changing Supreme Court: Constitutional rights and liberties . Minneapolis: West Publishing.
• Hoekstra, V. , & Johnson, T. R. (2003). Delaying justice: The Supreme Court’s decision to hear rearguments. Political Research Quarterly , 56 (3), 351–360.
• Hughes, C. E. (1928). The Supreme Court of the United States . New York: Columbia University Press.
• Hughes, C. E. (1937). Reason and opposed to the tyranny of force . Speech delivered to the American Law Institute.
• Johnson, T. R. (2004). Oral arguments and decision making on the United States Supreme Court . Albany, NY: SUNY Press.
• Johnson, T. R. , Black, R. C. , Goldman, J. , & Treul, S. A. (2009). Inquiring minds want to know: Do justices tip their hands with their questions at oral arguments in the U.S. Supreme Court?” Washington University Journal of Law & Policy , 29 , 241–261.
• Johnson, T. R. , Black, R. C. , & Wedeking, J. (2009). Pardon the Interruption: An Empirical Analysis of Supreme Court Justices’ Behavior During Oral Arguments . Loyola Law Review , 55 (2), 331–351.
• Johnson, T. R. , Spriggs, J. F., II , & Wahlbeck, P. J. (2005). Passing and strategic voting on the U.S. Supreme Court. Law & Society Review , 39 (2), 349–377.
• Johnson, T. R. , Wahlbeck, P. J. , & Spriggs, J. F., II . (2006). The influence of oral argumentation before the U.S. Supreme Court. American Political Science Review , 100 (1), 99–113.
• Knight, J. (1992). Institutions and social conflict . Cambridge, U.K.: Cambridge University Press.
• Knight, J. , & Epstein, L. (1996). The norm of stare decisis. American Journal of Political Science , 40 (4), 1018–1035.
• Kurland, P. B. , & Hutchinson, D. J. (1983). The business of the Supreme Court, O.T. 1982. University of Chicago Law Review , 50 (2), 628–651.
• Lax, J. R. , & Cameron, C. M. (2007). Bargaining and opinion assignment on the U.S. Supreme Court. Journal of Law, Economics, & Organization , 23 (2), 276–302.
• Levi, E. H. (1949). An introduction to legal reasoning . Chicago: University of Chicago Press.
• Liptak, A. (2007, October 8). Going to Court, but not in time to live. New York Times .
• Llewellyn, K. (1931). Some realism about realism—Responding to Dean Pound. Harvard Law Review 44 , 1222–1237.
• Maltzman, F. , Spriggs, J. F., II , & Wahlbeck, P. J. (2000). Crafting law on the Supreme Court: The collegial game . New York: Cambridge University Press.
• Maltzman, F. , & Wahlbeck, P. J. (1996). May it please the chief? Opinion assignments in the Rehnquist Court. American Journal of Political Science , 40 (2), 421–433.
• Murphy, W. F. (1964). Elements of judicial strategy . Chicago: University of Chicago Press.
• O’Brien, D. M. (1997). Join-3 votes, the Rule of Four, the cert. pool, and the Supreme Court’s shrinking plenary docket. Journal of Law and Politics , 13 , 779.
• Peppers, T. C. (2006). Courtiers of the Marble Palace: The rise and influence of the Supreme Court law clerk . Stanford, CA: Stanford University Press.
• Peppers, T. C. , & Zorn, C. (2008). Law clerk influence on Supreme Court decision making: An empirical assessment. DePaul L. Rev ., 58 , 51.
• Perry, H. W., Jr. (1991). Deciding to decide: Agenda setting in the United States Supreme Court . Cambridge, MA: Harvard University Press.
• Perry, R. C. , & Carmichael, J. L., Jr. (1985–1986). Have four vote certiorari cases been unimportant? Qualitative and quantitative tests of Justice Stevens’ argument. Cumberland Law Review , 16 , 419–446.
• Pritchett, H. C. (1948). The Roosevelt Court . New York: Macmillan.
• Provine, D. M. (1980). Case selection in the United States Supreme Court . Chicago: University of Chicago Press.
• Rehnquist, W. H. (2001). The Supreme Court (Revised and updated ed.). New York: Vintage Books.
• Revesz, R. L. , & Karlan, P. S. (1988). Nonmajority rules and the Supreme Court. University of Pennsylvania Law Review , 136 (4), 1067–1133.
• Riker, W. H. (1982). Liberalism against populism: A confrontation between the theory of democracy and the theory of social choice . San Francisco: Freeman.
• Ringsmuth, E. M. , Bryan, A. C. , & Johnson, T. R. (2013). Voting fluidity and oral argument on the U.S. Supreme Court. Political Research Quarterly , 66 (2), 429–440.
• Ringsmuth, E. M. , & Johnson, T. R. (2013). Supreme Court oral arguments and institutional maintenance. American Politics Research , 41 (4), 651–673.
• Robbins, I. P. (2002). Justice by the numbers: The Supreme Court and the Rule of Four—or is it five? Suffolk University Law Review , 36 (1), 1–30.
• Roberts, J. G. (2005, September 13). Second Day of Hearings on the Nomination of Judge Roberts . Testimony before the Senate Judiciary Committee. New York Times Online .
• Rohde, D. W. (1972). Policy goals, strategic, choice and majority opinion assignments in the U.S. Supreme Court. Midwest Journal of Political Science , 16 (4), 652–682.
• Rohde, D. W. , & Spaeth, H. J. (1976). Supreme Court decision-making . San Francisco: W. H. Freeman.
• Rosenberg, G. N. (1991). The hollow hope: Can courts bring about social change? Chicago: University of Chicago Press.
• Schubert, G. (1965). The judicial mind: The attitudes and ideologies of Supreme Court justices, 1946–1963 . Evanston, IL: Northwestern University Press.
• Schwartz, B. (1990). The ascent of pragmatism: The Burger Court in action . Reading, MA: Addison-Wesley.
• Schwartz, B. (1993). A history of the Supreme Court . New York: Oxford University Press.
• Segal, J. A. , & Spaeth, H. J. (2002). The Supreme Court and the attitudinal model revisited . New York: Cambridge University Press.
• Shullman, S. L. (2004). The illusion of devil’s advocacy: How the justices of the Supreme Court foreshadow their decisions during oral argument. Journal of Appellate Practice and Process , 6 (2), 271–293.
• Slotnick, E. E. (1978). The chief justices and self-assignment of majority opinions: A research note. Western Political Quarterly , 31 (2), 219–225.
• Slotnick, E. E. (1979). Who speaks for the Court? Majority opinion assignment from Taft to Burger. American Journal of Political Science , 23 (1), 60–77.
• Spriggs, J. F., II , & Hansford, T. G. (2001). Explaining the overruling of U.S. Supreme Court precedent. Journal of Politics , 63 (4), 1091–1111.
• Spriggs, J. F., II , & Wahlbeck, P. J. (1997). Amicus curiae and the role of information at the Supreme Court. Political Research Quarterly , 50 (2), 365–386.
• Stevens, J. P. (1983). The life span of a judge-made rule. New York University Law Review 58 (1).
• Stevens, J. P. (2012). Five chiefs: A Supreme Court memoir . New York: Back Bay Books.
• Wahlbeck, P. J. (1998). The development of a legal rule: The federal common law of public nuisance. Law & Society Review , 32 , 613–638.
• Wahlbeck, P. J. , Spriggs, J. F., II , & Maltzman, F. (1998). Marshaling the Court: Bargaining and accommodation on the United States Supreme Court. American Journal of Political Science , 42 (1), 294–315.
• Wahlbeck, P. J. , Spriggs, J. F., II , & Sigelman, L. (2002). Ghostwriters on the Court? A stylistic analysis of U.S. Supreme Court draft opinions. American Politics Research , 30 (2), 166–192.
• Warren, C. (1922). The Supreme Court in United States History . Boston: Little Brown.
• Wasby, S. L. , D’Amato, A. A. , & Metrailer, R. (1976). The functions of oral arguments in the U.S. Supreme Court. Quarterly Journal of Speech , 62 (4), 410–422.
• Wasby, S. L. , D’Amato, A. A. , & Metrailer, R. (1977). Desegregation from Brow to Alexander : An exploration of Court strategies . Carbondale: Southern Illinois University Press.
• Woodward, B. , & Armstrong, S. (1979). The brethren: Inside the Supreme Court . New York: Simon & Schuster.
• Wrightsman, L. S. (2008). Oral arguments before the Supreme Court: An empirical approach . New York: Oxford University Press.

1. It has invoked this power since Chief Justice John Marshall declared such power in Marbury v. Madison ( 1803 ).

2. Some scholars disagree with this assessment (see, e.g., Rosenberg, 1991 ).

3. Oral arguments and opinion announcements are technically public, but not fully so. The Courtroom holds only 250 seats for spectators, and there are no cameras allowed during either proceeding. Of course, it is easier today to hear what transpires in the Courtroom. Oyez.org makes these sessions available at the end of each week during the Court’s term. These audio files can also be found at supremecourt.gov.

4. Portions of this section are drawn from Johnson ( 2004 ).

5. They are right to note (1995, p. 22) that this number would probably be higher had they also had access to more than just Brennan and Marshall’s papers for this study. Indeed, if they could have seen the private memos sent or received by all of the justices who were on the Court during the time period of their sample, their hypothesis may have been supported with even stronger evidence.

6. Other scholars have provided evidence of strategic interaction at almost every stage of the Court’s decision-making process, including during the agenda setting ( certiorari ) stage (Caldeira, Wright, & Zorn, 1999 ), during oral arguments (Johnson, 2004 ), and during conference discussions (Johnson, Spriggs, & Wahlbeck, 2005 ).

7. Threshold issues are defined as the requirements from Article III of the Constitution that there must actually be a case or controversy in order for the Court to decide a case.

8. The exceptions clause in Article III of the Constitution gives Congress the power to alter the Court’s appellate jurisdiction as it sees fit.

9. That a case must be justiciable (meaning there is a case or controversy that can be decided by the Court) also stems from the Article III requirement that the Court can only decide cases and controversies. For instance, cases cannot be moot ( DeFunis v. Odegaard [ 1974 ]) but must also be ripe for review ( Longshoremen’s Union v. Boyd [ 1954 ]).

10. For instance, at any time a member of Congress may write legislation limiting the right to choose abortion on demand. While the politics of the House and Senate make it unlikely that any given piece of legislation will be brought to a vote, any member may still attempt to introduce such a law. Justices, however, must wait for a case to be brought to it. Only then may they take up the issue and work toward changing the law or maintaining the status quo.

11. Today almost all appeals come through the Court’s certiorari (cert.) process. This legal term means literally “to be informed of, or to be made certain in regard to.” The key for the justices is that cert. cases are part of the Court’s discretionary docket. In other words, the justices do not have to decide these cases.

12. At this point outside parties may weigh in on whether the Court should take the case. These groups, called amici curiae (friends of the Court), affect the probability the justices will hear a case (see, e.g., Caldeira & Wright, 1988 ).

13. The chief is often considered first among equals (Stevens, 2012 ) but has some power at several points during the Court’s decision-making process. Creating the initial draft of the discuss list (more generally being able to mold the Court’s possible agenda) is considered one of these powers.

14. Prior to the discuss list the Court actually used a “dead list,” which was the opposite of today’s practice. The dead list included cases that were not going to be discussed or voted on by the justices. A case that was “dead listed” was automatically denied review by the Court.

15. Very few powers are granted to the minority in the federal government. Beyond the Rule of Four, the key power reserved to a minority is the filibuster in the U.S. Senate (see, e.g., Fang, Johnson, & Roberts, 2007 ).

16. In 1916, however, Congress passed a law that the Court interpreted as giving it discretion over whether or not to hear appeals from state courts that raised federal issues. This was a major change, as Hartnett ( 2000 ) points out: “the Supreme Court produced a fundamental change in the relationship between itself and state courts in constitutional cases—a change far larger than Congress evidently anticipated. As I shall see, this was not the last time that the Court expanded its discretionary control over its caseload beyond that contemplated by Congress.”

17. This means the justices believe they made a mistake (they were improvident) by placing the case on the Court’s agenda. As such, they end (dismiss) the case without making a decision on the merits. Such a choice may happen before oral arguments but often happens after these proceedings.

18. See, for example, the joint appendix in one of the Court’s famous libel cases— Hustler Magazine v. Falwell ( 1988 ).

19. Note that amici can file in support of a judgement rather than a party; however, this is rare.

20. The chief justice made this comment during a C-SPAN forum on cameras in the courtroom. “ Chief Justice Roberts Worried about ‘Impact’ of Cameras in SCOTUS .” Real Clear Politics, June 27, 2011.

21. Note, however, that when the Court is in one of its two-week argument sessions the justices hold only Friday conferences.

22. The most junior justice (today it is Justice Kagan) must also answer the door if anyone knocks. This (semi onerous) task was held by Justice Breyer from 1994 through January of 2006. His tenure as the junior associate justice is one of the longest in history.

23. All votes at conference are preliminary. That is, justices can and do change their votes between conference and the time the Court announces its final decision. Epstein and Knight ( 1998 ) demonstrate that at least one justice changes a vote in 50% of all cases.

24. Since at least the time of John Marshall’s tenure on the Court (and through the 1960s), the discussion of a case at conference started with the chief and concluded with the most junior justice, while voting proceeded in the opposite fashion (see Clark, 1959 ). As Justice Brennan ( 1960 , p. 402) described: “The junior justice votes first and voting then proceeds up the line to the Chief Justice who votes last.” Sometime in the mid-1960s, however, this voting rule changed, and both discussion and voting in a case now proceeds based upon seniority, with the chief both discussing a case and voting first (see Rehnquist, 2001 , p. 254).

25. Today, the justices speak in this order: Chief Justice Roberts, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, Justice Alito, Justice Sotomayor, and Justice Kagan (until his death on February 13, 2016, Justice Scalia spoke second at conference).

26. These notes come from the papers of former justices. Both Justice Blackmun and Justice Brennan left their Court papers to the Library of Congress. Within these papers are docket sheets that note how each justice voted in each case the Court decided during Blackmun or Brennan’s tenure on the bench.

27. If the chief is not in the majority, then the senior associate in the majority holds this power.

28. While justices do not specialize in particular areas of the law, and opinions are not assigned based on a justice’s perceived expertise in an issue area, expertise may affect a chief’s choice of assignment. For example, Brenner and Spaeth ( 1988 ) suggest chiefs may call on colleagues who have more experience writing in a given area of the law. They do so in order to “ensure the smooth and efficient operation of the Court” (Maltzman & Wahlbeck, 1996 , p. 427).

29. More specifically, the defendants in this case (who had been charged with murder, robbery, and grand larceny) argued that the press should be excluded from their pre-trial evidentiary hearings because all of the pre-trial publicity was adversely affecting their ability to obtain a fair trial. The Court agreed and in an opinion written by Justice Stewart, argued that the public does not possess a right to attend criminal trials.

30. This deduction is based on the seniority rule of opinion assignment discussed previously.

Related Articles

• Agenda Setting and Case Selection on the U.S. Supreme Court
• The Judicial Hierarchy
• Theorizing the U.S. Supreme Court

Printed from Oxford Research Encyclopedias, Politics. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice).

date: 15 September 2024

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• Civil Rights and Equal Protection

Contrary to popular belief, the phrase “…all men are created equal,” does not appear in the U.S. Constitution.  However, it can be found in the earlier document; the Declaration of Independence.  This tells us that equality was a priority in this country, even before the American Revolution.

In 1868, equality was mentioned in the U.S. Constitution, with the ratification of the 14 th Amendment .  In an early court case about equality, the U.S. Supreme Court wrote about the purpose of the 14 th Amendment.  In the words of Justice Strong in 1879 –

The 14 th Amendment …(is)…one of a series of constitutional provisions having a common purpose, namely to secure to a recently emancipated race, which had been held in slavery through many generations, all the civil rights that the superior race enjoy. (Strauder v. West Virginia)

Ironically, application of the 14 th Amendment by the federal courts lead to the infamous 1896 decision in Plessy v. Ferguson , allowing “separate but equal” facilities for different races, otherwise known as segregation.  This decision has been overruled, making segregation by race illegal.  In the 1954 landmark decision Brown v. Board of Education , the court interpreted the 14 th Amendment to mean that:

“Separate” can never truly be “equal.”

The 14 th Amendment has been applied in many courts cases in which a law or policy requires differential treatment according to race, as well as national origin, immigration status, and religion.  Several examples cases are outlined below for further study.

Case Studies

Brown v. board of education of topeka, 1954.

• Case History

Black students and families in several states sued for denial of equal schools. In each of the school districts, black students and white students were required to attend separate public schools. Black students were prohibited from attending schools designated for white students, even if the school was closer to their home.

Does segregation by race of public school students violate the 14 th Amendment?

Several cases about segregation in public schools began in separate states; Kansas, South Carolina, Virginia, Delaware, as well as the District of Columbia. Most of the students and families suing the school districts for equal treatment lost in the lower courts. The lower courts were following the precedent set in Plessy, and said the schools did not violate the Constitution by providing separate schools. When the parties asked the U.S. Supreme Court to review their cases, the court consolidated them into one case. The name came from the first listed alphabetically – Brown v. Board of Education of Topeka .

What Do You Think The U.S. Supreme Court Decided?

The U.S. Supreme Court issued two opinions. In 1954, Brown I dealt with the constitutionality of public school segregation. The U.S. Supreme Court found unanimously that segregation of students by race, and the doctrine of “separate but equal,” violated the 14 th Amendment. In 1955, Brown II ordered the remedy, or solution, for solving the problem of segregated schools. This decision, also unanimous, instructed school districts to stop segregation at the local level promptly, and with “ all deliberate speed .”

The Supreme Court said “ We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated … are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14 th Amendment .” by author of opinion, Chief Justice Earl Warren

• The Oyez Project- Brown I
• The Oyez Project – Brown II
• The opinion of the U.S. Supreme Court – Brown I
• The opinion of the U.S. Supreme Court – Brown II
• The official versions of the opinions can be found in the  U.S. Reports  at your local law library. Brown I  – Brown v. Board of Education of Topeka , 347 U.S. 483 (1954).  Brown II –  Brown v. Board of Education of Topeka , 349 U.S. 294 (1955)

Shelley v. Kraemer, 1948

White home owners in a neighborhood in St. Louis, Missouri, entered into a private agreement called a restrictive covenant. This agreement barred the sale of homes within their neighborhood to African Americans. In 1945, Mr. and Mrs. Shelley, an African-American couple, moved to St. Louis and purchased a home on Labadie Avenue, in violation of the agreement. Mr. and Mrs. Kraemer, a white couple who lived on Labadie, sued the Shelleys.

Does restricting home sales according to race violate the 14 th Amendment?

The Kraemers sued the Shelleys in the state court system of Missouri. The Missouri trial court allowed the Shelleys to stay. The Kraemers appealed to the Missouri Supreme Court. The Missouri Supreme Court reversed the decision, saying that the restrictive covenant was legal and that the Shelleys had to give up ownership of the home. The Shelleys then asked the U.S. Supreme Court to review the case.

The U.S. Supreme Court ruled that enforcement of restrictive covenants violates the 14 th Amendment. If the state court or state law enforcement officials attempted to enforce the restrictive covenant, they would be denying the Shelley’s right to equal protection of the laws, and therefore violating the U.S. Constitution.

The Supreme Court said “It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the 14 th Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition … of other basic civil rights and liberties which the Amendment was intended to guarantee.” by author of opinion, Chief Justice Fred M. Vinson

• The Oyez Project
• The opinion of the U.S. Supreme Court
• See the house on Labadie here:
• The official version of the opinion can be found in the U.S. Reports at your local law library. Shelley v. Kraemer , 334 U.S. 1 (1948)

Loving v. Virginia, 1967

The state of Virginia had a statute forbidding interracial marriage. In 1958, Mildred Jeter and Richard Loving traveled from Virginia to Washington D.C. to get married. Mildred was a black woman, and Richard was a white man. When they returned to their home state of Virginia, they were arrested, found guilty, and sentenced to serve jail time.

Does prohibiting a marriage based on the race of the couple violate the 14 th Amendment?

The state of Virginia pursued criminal charges against the Lovings. They asked the state court to dismiss the charges, stating the Virginia law was unconstitutional. They lost in the trial court, and they then appealed to the Virginia Supreme Court, which also upheld the law. The Lovings then asked the U.S. Supreme Court to review the case.

The U.S. Supreme Court unanimously found the Virginia law against interracial marriage to be in violation of the 14 th Amendment. The Court could find no legitimate purpose for the law, other than racial discrimination.

The Supreme Court said “ The 14 th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State. ” by author of opinion, Chief Justice Earl Warren.

• The official version of the opinion can be found in the U.S. Reports at your local law library. Loving v. Virginia , 388 U.S. 1 (1967).