VI.                    The Supreme Court in Action

1.         In an actual Supreme Court case, the nine justices hear briefs (information, facts, and statements about the case) and then hear arguments from each lawyer—usually for no more than 30 minutes.

2.         Because the U.S. gov’t is a plaintiff or defendant to about half of the cases that the Supreme Court hears, the U.S. solicitor general (the 3^rd-ranking member of the Department of Justice) often appears.

                                                                i.      He approves every case the gov’t presents to the Court and decides what cases the gov’t appeals from the lower courts.

3.         Sometimes, amicus curiae may be filed as a brief from an interested but not directly affected third party or group, but the Court must first grant permission for these briefs to be filed.

4.         Justices also consult legal periodicals like the Harvard Law Review and the Yale Law Journal (thus letting outside sources influence decisions), and on Fridays, they retire to the conference room, where they secretly deliberate, with the each judge giving his opinions in order of seniority and then the judges voting in order of reverse-seniority.

                                                                i.      A majority is needed for a decision, and in ties, the lower court’s decision stands.

                                                               ii.      The Court also traditionally issues an opinion explaining its rulings (if it’s short and unsigned, it’s called a per curiam opinion) in one of three forms:

a.         An opinion of the Court explains the winning side’s views.

b.         A concurring opinion explains the views of a member of the winning side who chose that side for different reasons.

c.         A dissenting opinion explains the views of the losing side.

5.         Justices often vote similarly, and there are some rather clear voting blocs that arise:

                                                                i.      In the 1970s/80s, there were often three such blocs—a liberal/activist bloc, a conservative/strict-constructionist bloc, and a swing bloc (the liberal bloc was usually the minority, but it sometimes got enough votes from the swing bloc to win its way).

                                                               ii.      Today, the Court remains deeply divided, with its justices voting differently depending on the case or subject matter.

                                                              iii.      Of course, justices often do agree because many cases don’t have a liberal or conservative side; besides, what should count is the quality of the judges’ reasoning, not politics.