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. 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. 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). 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. In these instances, scholars disagree as to which justices exert the most influence over the opinion author, and therefore over legal policy. 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. More recently Black, Schutte, and Johnson (2013) and Johnson et al. George Grow was the editor. The dead list included cases that were not going to be discussed or voted on by the justices. 10. For a final ruling, at least five of the nine justices must agree. Debates the attorneys have with judges. By their operationalization this does not happen because most important cases almost always receive at least five votes for certiorari. Rather it simply means they could not agree to hear the present case. 11. U.S. Supreme Court Process A party who loses in a federal court of appeals, or in the highest court of a state, can try one last appeal. The court can make decisions on rules governing technology and business. In the U.S. Supreme Court, any justice can write a dissenting opinion, and this can be signed by other justices. 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. in a case, discussed earlier in this chapter, also play a role in its decision-making, including law clerks, the solicitor general, interest groups, and the mass media. -Supreme court justice asks the other justices for opinion. After the justices decide what cases to rule on, they read about the history of the legal arguments. Two explanations have been given in the literature for why this does not happen on the Court. While these scholars point out that this norm can be and has been violated, justices do not often do so. First, justices are appointed by the president and approved by Congress. It seems then, in modern cases, the justices now speak as much or more so than do the attorneys. The court protects Americans’ ability to say what they want, about what they want. 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. This is not, however, how the majority opinion turned out. 6. These briefs are meant to convince the justices who should win the case. 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. The trial judge would hear evidence and consider legal arguments from each side before making a decision. 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. 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. No additional effort or response is necessary from the author when a justice immediately agrees to join his opinion. 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. The question, however, is why do the justices feel constrained by precedent? 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). 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. makes these sessions available at the end of each week during the Court’s term. 4. Today, and since 1970, the time allotted for these has been limited to 30 minutes per side. 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). The Supreme Court defines ...”. It is a “hope for the future,” she says, that permits change. Article Fiveof the Constitution lays out the specific process. Research that focuses on the key rule that governs the Court’s agenda-setting process—the Rule of Four—is presented. Epstein and Knight (1998) demonstrate that at least one justice changes a vote in 50% of all cases. For example, many public schools held classroom prayers long after the Court had banned government-sponsored religious activities. 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? FILE - Activists demonstrate in front of the U.S. Supreme Court, Jan. 22, 2016. 29. 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. Ultimately, this means the lower court decision remains the law. The process through which cases are placed on the Court’s docket is briefly discussed. 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. This deduction is based on the seniority rule of opinion assignment discussed previously. Currently, there are nine Justices on the Court. The Supreme Court has the final word on the meaning of the Constitution. It takes four votes to grant review and if four votes are not forthcoming the Court denies the cert. Note, however, that when the Court is in one of its two-week argument sessions the justices hold only Friday conferences. If something is needed from outside the room the most junior justice calls to make the request.22. In fact, Burger was more than twice as likely to pass as any other justice on the bench. 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. Granting a cert petition requires the votes of four justices. 2. 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. 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). Beyond the debate about the power of each branch, the two elected branches often carry out their jobs in the public eye. Before taking office, each Justice must be appointed by the President and confirmed by the Senate. Did you base your decision on your values or did you worry that your parents or boss or even the police would not agree with you and reverse the decision? 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). Was it easy for you to decide who was right and who was wrong? 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. That is, the “rules of the game” may prevent the justices from always making decisions that equate with their most preferred outcomes. 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. Faced with a court ruling that overturns one of its laws, Congress may rewrite the law or even begin a constitutional amendment process. 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. As they point out (1998), “The Rule of 4 invites forward thinking. This provides yet another method for the Supreme Court to make criminal justice policy. Greenhouse describes the Supreme Court building as having a modest quality. 25 The justices repeat this process for each case argued during the current week. 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. 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. 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. They do so in order to “ensure the smooth and efficient operation of the Court” (Maltzman & Wahlbeck, 1996, p. 427). At this point, no justice is bound by her stated policy preference or vote at conference; she instead has four options. 13. As such, advocates sometimes spoke for many hours over multiple days. Indeed, these two issues dominate litigant briefs and account for over 70% of all briefed issues. 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. 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