How Does a Case Get to the Supreme Court?

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These days, it seems that the U.S. Supreme Court is constantly in the news. This might make you think that the court decides several cases a day throughout the year. But nothing could be further from the truth.

For one thing, the court is only in session from October through June. During each term, the court hears oral arguments for two weeks per month and generally only through April. During those two weeks, the court will hear two cases a day for three days a week.

The court accepts only about 75 to 85 of the more than 7,000 cases that it is asked to review each year. That’s about 1 to 2%. One reason that Supreme Court decisions are so important is because they are so rare.

So how does a case get to the Supreme Court? Here's a look at the process.

How does a case get to the Supreme Court?

Cases that end up with the Supreme Court generally start in United States District Court or a state-level equivalent. These are sometimes referred to as trial courts.

Step 1: Trial

Many cases are filed after a governmental body – Congress, a state legislature, a city council or an executive branch agency – passes a law or enacts a regulation that will affect someone’s legal rights, including their First Amendment rights in some cases.

A case can also start its journey to the Supreme Court after someone is punished (such as being arrested, fined, or being suspended or expelled from public school), and they present their defense at trial. For example, a person could say that the First Amendment protects their actions. When Gregory Lee Johnson was arrested for burning an American flag during a protest at the 1984 Republican National Convention in Dallas, he successfully defended himself by saying the First Amendment protected his act of free expression.

Step 2: Appeals court

Once the initial state or federal court decides the case, the losing side can appeal this decision.

In a state court system, appeals could include both an intermediate state court of appeals and a state Supreme Court.

In our federal court system, the case will go to a United States Court of Appeals, sometimes referred to as a circuit court. There are 13 circuit courts that hear appeals. They represent 11 different regions in the U.S. plus Washington, D.C., and the United States Court of Appeals for the Federal Circuit.

Congress can sometimes bypass appeals court step

Sometimes when Congress passes a law that it expects will be challenged in court, it will save the parties and the legal system some time and say that the losing party in the federal district court can bypass the Court of Appeals and seek immediate review by the Supreme Court – but only if the Supreme Court agrees.

Appeals of a decision by a federal agency can go directly to the United States Court of Appeals without being heard in trial court first.

Cases in a United States Court of Appeals are heard by a three-judge panel. The losing party can request review by all the judges on that Court of Appeals (which can range from 10 to 50) in what is known as “rehearing en banc.” Rehearing en banc is not guaranteed.

Step 3: Petitioning the Supreme Court

The losing party in the federal Court of Appeals or state Supreme Court has one last option: petitioning the U.S. Supreme Court to take the case.

To do so, they’ll file a petition for certiorari with the U.S. Supreme Court. Certiorari is Latin for “to inform.”

When the Supreme Court agrees to hear a case, it issues a “writ of certiorari” literally “informing” the lower court that it will hear the case – though it is under no obligation to do so.

The Supreme Court is not under any obligation to take a case. It generally only accepts cases that have national significance. The court is generally likely to take a case if there is a split in viewpoints between federal courts on a given issue – often called a “circuit split” – or if a lower court clearly erred in deciding an important issue, and the justices feel they must step in to fix the mistake.

At least four of the nine justices must agree to hear a case, which further limits the number of cases that are heard.

These cases go straight to the U.S. Supreme Court

The Constitution says that the Supreme Court can exercise original jurisdiction and serves as the first step in cases:

  • Between two or more states.
  • Between a state and a foreign government.
  • Against foreign ambassadors.
  • Between a state and a citizen of another state.

But the court does not have to take cases in which it has original jurisdiction. The Supreme Court can still refer the case to a lower court if it thinks there will be extensive fact-finding required that is better suited for a lower court.

Step 4: Arguing at the Supreme Court

Once the Supreme Court accepts the case, each party will submit written briefs with their arguments for the court. Other groups with interest in the case, known as amici – a Latin term meaning “friends” – can also submit briefs.

This is followed by oral argument where each side presents its arguments and is questioned by the nine justices of the Supreme Court for more than an hour or so.

The court will eventually issue a decision that agrees with the lower court and upholds its ruling or overturns the court and “remands” the case to that lower court with instructions for the lower court to change its decision to comply with the Supreme Court’s decision. The Supreme Court’s decision is usually joined by at least five of the nine justices.

This decision serves as precedent that must be followed by all other judges in the country in considering how they might rule on the same issue. In some cases, there may only be a “plurality” (fewer than five but the single biggest voting block) of justices who join a particular decision, which lessens the value of the precedent.

If there is a vacancy on the court and the justices are split 4-4, then the lower court verdict stands, though the precedential value of the case is also diminished, as there is no true majority of justices supporting the result. Justices who disagree with that decision can write a dissenting opinion. Those who agree with the result but not the reasoning may write a concurring opinion.

It’s a long journey to the Supreme Court, and only a few cases make it there. But that’s kind of the point: These are all important cases that have maximum impact on our First Amendment and other legal rights.

Kevin Goldberg is a First Amendment specialist for Freedom Forum. He can be reached at kgoldberg@freedomforum.org.

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