Decision-Making Criteria
Just as jurors in a criminal or civil case use standards of
proof in deciding how to vote in a trial (e.g., “guilt
beyond a reasonable doubt,” “preponderance of the evi-
dence,” “clear and convincing evidence”), federal
judges—including those on the U.S. Supreme Court—
have a number of guidelines and frameworks for decid-
ing the cases they hear. At a general level, the Supreme
Court’s role is to interpret the U.S. Constitution and
federal statutes. In addition, the Court can establish new
rules for deciding future cases. Among the many types
of cases the U.S. Supreme Court decides, those involv-
ing the Due Process and Equal Protection Clauses of
the Fourteenth Amendment to the U.S. Constitution
often are among the most high-profile ones. Further-
more, these types of cases illustrate one of the frame-
works used by the justices in deciding how they
will vote.
As a starting point, a state may pass a law restrict-
ing some type of behavior, such as certain forms of
sexual conduct or the circumstances under which a
woman can obtain an abortion. The initial inquiry
would probably ask whether the statute threatened a
“fundamental right” or imposed burdens on a “suspect
class” (e.g., groups that have historically been sub-
jected to discrimination). If the answer to this inquiry
is “no,” the statute’s constitutionality is then evaluated
by the Supreme Court justices (or federal judges on a
lower court) according to what is known as the “ratio-
nal basis” or “rational relations” test, which is consid-
ered a relatively easy standard for the government to
meet in defending the law. Harry Krause and David
Meyer (2003) note that “ordinarily, the Equal
Protection Clause requires only that the lines drawn
by the government be rationally related to the object
of the legislation” (p. 25).
If, however, the Court determines that one or both of
the aforementioned triggering conditions—intrusion on
a fundamental right or against a suspect class—is met,
the government will then be held to the more difficult
“strict scrutiny” standard regarding its statute. This
standard “presumes that the challenged action is uncon-
stitutional, unless government can rebut...by proving
that the intrusion on the fundamental right is necessary,
or ‘narrowly tailored,’ to the advancement of a ‘com-
pelling’ state interest” (Krause & Meyer, 2003, p. 23).
A saying has developed reflecting many observers’
impression of the government’s difficulty in prevailing
under strict scrutiny; the standard is said to be “strict in
theory, fatal in fact.” Regarding Supreme Court jus-
tices’ ability to devise new standards, the former justiceSandra Day O’Connor’s test of whether abortion-
related restrictions impose an “undue burden” on
women’s access to the procedure is one of the most
prominent examples in recent years.
A somewhat different, more linguistically related
issue concerns statutory interpretation. Justice Stephen
Breyer discusses some of the complexities of this seem-
ingly obscure area in his 2005 book Active Liberty.The
following is one example of such interpretive princi-
ples, in which Breyer draws on several different legal
sources:A canon of statutory interpretation,ejusdem generis,
says that, if “general words follow specific words in
a statutory enumeration,” courts should construe the
“general words” as “embrac[ing] only objects simi-
lar in nature to those objects enumerated by the pre-
ceding specific words.” (p. 92)Such “canons of construction” are often discussed
in law review articles.Types of Rulings
Many of the U.S. Supreme Court’s best-known rulings
are those that appear to bring final resolution to a mat-
ter. For example, once the Court’s final decision in
United States v. Virginia (1996) was announced,
observers knew instantly that the Virginia Military
Institute could no longer exclude female students.
Other cases, at the time they are decided, appear to pro-
vide finality to an issue, only to have it reemerge years
later in a new line of cases. One recent example is how
the Court shifted its stance on a constitutional right to
privacy of sexual intimacy from Bowers v. Hardwick
(1986) to Lawrence v. Texas (2003). What these cases
all have in common, however, is that the U.S. Supreme
Court rulings brought closure to the parties at hand,
with no need for further hearings.
Not all cases at the High Court are like that. In some,
the justices remand the case back down to a lower court
for reevaluation in light of some new standard or ruling.
A new round (or set of rounds) of hearings and deter-
minations thus takes place in a lower court, far away
from the spotlight of the U.S. Supreme Court, to which
the case ultimately may or may not return. In Schlup v.
Delo(1995), for example, the U.S. Supreme Court had
to decide if the state prisoner Schlup’s habeas corpus
claim of new exculpatory evidence should be evalu-
ated by a lower court under the standard of “clear and
convincing” evidence (harder for Schlup to prove) or,826 ———U.S. Supreme CourtU-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 826