Operations of the
Supreme Court
The U.S. Supreme Court does not conduct “trials” in the
sense of evidence presentation, cross-examination of
witnesses, and original fact-finding. Rather, it conducts
appellate reviews (i.e., hearings) of cases from lower
appellate courts, such as a federal Circuit Court of
Appeals or a state High Court. The one exception to the
U.S. Supreme Court’s role as an appellate venue, which
is very rare, is when the Court takes a case under origi-
nal jurisdiction, as when there is a dispute between two
states. In its typical appellate role, the U.S. Supreme
Court will evaluate the soundness of the lower-court
decision being appealed, with an eye toward whether the
previous court acted properly in applying U.S. Supreme
Court precedents, interpreting provisions of the U.S.
Constitution, interpreting a statute, and so forth. Ulti-
mately, a majority of the Supreme Court must decide
whether to affirm or overturn the lower-court ruling.
An estimated 8,000 petitions for hearing are filed
annually to the U.S. Supreme Court. In such petitions,
the losing side at the previous level (petitioner)
requests a full review and hearing at the Supreme
Court, based on the contention that the previous
court’s ruling contained reversible proceduralerror
and that the case raises highly important statutory or
constitutional issues. In only about 80 cases per year
(based on recent years’ practice) does the Court grant
certiorari (cert. for short), meaning that it agrees to
hear the appeal. For cert. to be granted, at least four of
the nine justices must vote to do so.
A case before the nine U.S. Supreme Court justices
is highly structured. With the exception of extremely
high-profile cases, to which more time may be devoted,
a typical Supreme Court oral argument lasts for exactly
1 hour, with 30 minutes granted to counsel from each
of the two sides. The justices can (and often do) inter-
rupt attorney arguments to pose questions, with the
time consumed by the justices counting as part of the
arguing side’s 30 minutes. Written briefs submitted in
advance by each side, as well as amicus curiae (“friend
of the Court”) briefs submitted by outside parties, form
the basis for the oral questioning. For an outside party
to submit an amicus brief, consent must be obtained
from the focal parties in the case or from the Court.
Greg Stohr (2004) details how the University of
Michigan, in preparing to defend its affirmative action
admissions policies, actively sought supportive amicus
briefs from groups including corporations and retiredmilitary leaders to buttress its argument for the impor-
tance of diversity in society.
On the next available Friday after oral argu-
ments, a justices-only conference takes place, at
which a straw vote is held to see how many justices
are leaning toward voting for each side. The most
senior justice in the (tentative) majority—with the
Chief Justice treated as being first in seniority,
regardless of length of service on the Court—has
the choice of to whom to assign the writing of the
(apparent) majority opinion. Other justices can
draft concurrences or dissents, depending on
their judgment of the case. Draft opinions are
exchanged among the justices’ chambers, some-
times for months, with a justice who was originally
planning to vote for one side sometimes being won
over to the other side; such shifting coalitions may,
of course, necessitate a reorganization of the writ-
ing of majority and minority opinions. Justices
vary in the amount and nature of the work they del-
egate to their law clerks; the latter tend to have
graduated from elite law schools and clerked pre-
viously for an appellate judge at a lower level.Role of the Solicitor General
According to Lincoln Caplan (1987), “the Solicitor
General’s principal task is to represent the Executive
Branch of the [federal] government in the Supreme
Court” (p. 3). In some cases, the U.S. government is
one of the two focal parties to the dispute, whereas in
others it is not. Overall, however, so influential does
Caplan consider the Solicitor General (SG) to be that
the former’s book on the history of the SG’s position
is titled The Tenth Justice.Two ways in which the
SG’s office has an impact on procedural aspects of
Supreme Court cases are (1) its high success rate with
cert. petitions relative to others who file and (2) its
opportunity to participate in the oral arguments of
some cases as a third party with its own block of
time, when the U.S. government is not one of the
focal parties. In the University of Michigan affirma-
tive action cases mentioned above, for example, the
SG was given 10 minutes each in the undergraduate
and law school cases. Caplan suggests that, for much
of its history, the SG’s office has enjoyed a reputation
for thorough, impartial legal analysis in its briefs,
thus possibly accounting for its influence with the
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