The Business of the Supreme Court

July 09, 2018

University of Illinois College of Law's Bob Lawless

University of Illinois College of Law

The United States Supreme Court mostly toils away in relative anonymity punctuated by brief spells in the media’s glare. When a vacancy occurs, we debate the momentous decision of a replacement who could shape the Court’s jurisprudence for decades to come. It is at this time when we should be most informed about the Court. Thus, it seemed a good idea to make this week’s Legal Issues a short civics lessons on the business of the Supreme Court.

Broadly speaking, there are two types of cases that reach the Supreme Court: cases involving statutes passed by the legislature and cases involving the Constitution. If Congress does not like the way the Supreme Court has ruled on a statute, Congress always can change the statute. Of course, that is not true for constitutional decisions. Absent an amendment, the Supreme Court is the final say on the U.S. Constitution.

The legal concept of stare decisis says courts should follow their previous decisions. The prospect of a new justice, however, raises the possibility of new voting alignments that might lead to a reconsideration of previous decisions. Because Congress can amend statutes but not the Constitution, it is often argued that the Supreme Court should more willingly reconsider its constitutional decisions than its statutory ones. Thus, the Supreme Court recently overruled a decision on the First Amendment and public unions but turned away an appeal challenging a 100-year old case with the dubious result that professional baseball is not “commerce” under the antitrust statute.

Cases get to the Supreme Court through a process called a writ of certiorari or “cert” as it is more often called. A party that lost its case below can petition the Supreme Court to grant cert. Four justices must vote to hear the case, or the petition is dismissed. Thus, unlike your first appeal which an appellate court must consider, appeals to the Supreme Court are discretionary. The vast majority of cases the justices agree to hear involve legal issues where there are disagreements among lower courts. The Supreme Court hears exceedingly few cases. Over the last ten years, the Supreme Court has granted cert in an average of seventy-six cases per year, which is about one percent of the cert petitions it receives. To compare, there are over 350,000 civil and criminal cases filed in the federal trial courts each year which lead to about 50,000 appeals to the federal appellate courts. Vacancies on the lower federal courts do not receive as much attention, but these courts have profound influence on the development of federal law.

Also, disagreement among the justices is not as prevalent as is often thought. The five-to-four cases tend to be the most ideologically polarizing and attract media attention, but the most common outcome is a unanimous nine-to-zero decision. Over the last seven years, fifty percent of the Supreme Court’s decisions have been unanimous as was true in its recent decision on political gerrymandering. In the last term, the most common disagreement among the justices was between Justice Thomas and Justice Sotomayor. They disagreed half of the time, which also means they voted together half of the time.

Only one-third of the cases the Supreme Court hears involve constitutional questions. The other two-thirds of the docket come from federal statutes. Thus, the Supreme Court spends most of its time interpreting laws like the federal criminal code, the Clean Water Act and the Indian General Allotment Act of 1887, all of which came before the Court over the last year. And that ends this week’s civics lesson, which I hope makes you a more informed consumer of what almost certainly will be a cacophonous debate about the Supreme Court vacancy.