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."
By Maureen Hoch, PBS Online NewsHour