| The Supreme Court's caseload has increased
steadily over the decades, but the process by which justices choose
which cases to hear remains uniquely their own -- and is considered
by some to be the most important aspect of the high court's review
process.
The
court regularly receives some 7,000 cases submitted for its review,
most commonly in the form of requests for "writs of certiorari,"
which are petitions from one or both sides of a case asking for
the high court's review. If the court decides to accept the petition,
a "writ of cert" is issued, which essentially asks the
appellate court to send their records to the Supreme Court for
further review. In rare cases of great public importance, the
high court can issue a writ of cert even before the lower court
has heard the case.
 In
addition to the regularly submitted petitions, the justices also
receive some 1,200 applications for various
types of legal action each year. Applications, which are addressed
to each justice based on the federal judicial circuit they are
assigned, can be acted upon individually by the justices and usually
involve some type of emergency action such as a stay of execution
or an urgent restraining order.
The
case screening process beings with the clerk of the court who
examines each petition to ensure it is in proper form to be reviewed.
The case then proceeds to the court's law clerks -- four handpicked
staffers per justice who are usually top law school graduates
or junior staffers at prestigious law firms, chosen to assist
each justice for one term. The clerks begin the task of sorting
through the petitions and determining which cases fall within
the court's jurisdiction and raise questions of appropriate constitutional
and legal importance to merit the justices' review.
Most
of the justices gather their clerks together to form a "cert
pool" to review the petitions. This process helps the busy
law clerk staff to divide among themselves the task of writing
memorandums analyzing the facts of worthy petitions. These memos
go on to aid the justices in their decision on how to vote on
a case's fate.
After
passing through the clerks, a petition then moves to consideration
by the full complement of justices. Meeting in a closed conference
room, the justices discuss which cases they believe are worthy
of full deliberation and then vote aloud to determine the petition's
fate.
Under
the so-called "Rule of Four," at least four justices
must vote to hear the case for it to move on to the docket. The
most junior justice takes handwritten notes that will go on to
produce the public announcement of the court's order on the petition.
"Whether or not to vote to grant certiorari strikes me as
a rather subjective decision, made up in part of intuition and
in part of legal judgment," Chief Justice William Rehnquist
writes in his book, The Supreme Court. "One factor that plays
a large part with every member of the Court is whether the case
sought to be reviewed has been decided differently from a very
similar case coming from another lower court: If it has, its chances
for being reviewed are much greater than if it hasn't."
Justices
who disagree with a majority decision to reject a case can issue
a statement expressing their viewpoint, called a "Term Opinion
Relating to Orders."
Of
the more than 7,000 petitions it receives, the court generally
accepts about 150 cases for full review. Some three-quarters of
the decisions on those cases are issued as fully published opinions.
"Most
high courts in other nations do not have discretion, such as we
enjoy, in selecting the cases that the high court reviews. Our
court is virtually alone in the amount of discretion it has,"
Justice Sandra Day O'Connor said in an interview with three Cardozo
University law professors in 2000.
"We
are constantly grateful that Congress has seen fit to give the
court that amount of discretion. We would drown in cases otherwise
-- cases that neither warrant nor merit the attention of the nine-member
court," O'Connor added.
Cases
that are accepted for full court deliberation are next scheduled
for oral arguments. Lawyers for each side of the case are given
a strict 30-minute time limit during which to address the justices.
Generally, the attorneys can expect direct and constant questions
throughout their appearance before the high court. For most attorneys,
addressing the Supreme Court is considered a major career distinction.
For the most part, oral arguments are considered a crucial stage
of the process. In the book "The Supreme Court at Work"
by Joan Biskupic and Elder Witt, the late Justice William Brennan
is quoted as saying, "Oral argument is the absolute indispensable
ingredient of appellate advocacy. ... Often my whole notion of
what a case is about crystallizes at oral argument. This happens
even though I read the briefs before oral argument."
-- Compiled by Maureen Hoch
for the Online NewsHour
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