The Handy Supreme Court Answer Book. David L Hudson
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that the Court will hear a case if four justices agree the case is certworthy, or worthy of being reviewed. The practice has been in existence since at least 1924.
CourtSpeak: Rule 28—Oral Argument
“Oral Argument should emphasize and clarify the written arguments in the briefs on the merits. Counsel should assume that all Justices have read the briefs before oral argument. Oral argument read from a prepared text is not favored….
Unless the Court directs otherwise, each side is allowed one-half hour for argument. Counsel is not required to use all the allotted time….
Regardless of the number of counsel participating in oral argument, counsel making the opening argument shall present the case fairly and completely and not reserve points of substance for rebuttal.”
Where do the justices decide whether to accept a case for review?
The justices decide which cases they will decide in their weekly meetings in conference. These meetings take place in the “Conference Room” in the Supreme Court building. Only the nine justices attend these conference meetings; law clerks and other personnel are not allowed to attend. If someone knocks on the door, the most junior justice must answer the door.
The chief justice normally begins the meetings by bringing up the cases on the “discuss list.” The chief justice then speaks about particular cases and whether he or she believes the case should be reviewed. The customary practice is that each of the justices speaks in order of seniority.
When the Court decides to hear a case, what happens next?
The Court informs the Clerk of the Court, who must then schedule oral argument. Under Rule 25, the petitioner then must draft a written document called a brief (a bit of a misnomer because briefs can be up to fifty pages long) within forty-five days of the Court’s order that it has accepted the case. The respondent then has thirty days from the date of the petitioner’s filing to file its response brief. The petitioner may then file a reply brief as long as it is filed more than one week before oral argument.
What is oral argument?
Oral argument is the process by which attorneys come before the U.S. Supreme Court and present their case. The attorneys face questioning about the case from the individual justices. Rule 28 provides that generally each side is given thirty minutes for argument. The petitioner presents first and then the respondent follows. The petitioner can reserve some time for rebuttal after the respondent’s argument. Oral argument is important because it offers the advocates the only time with which to interact with the justices and persuade them to their points of view.
An artist’s sketch shows attorney John Gibbons presenting an oral argument in front of the Supreme Court justices in April 2004. Dana Verkouteren/AP Images.
The justices vary in how much they question the attorney-advocates. Justice Antonin Scalia is known for being quite vocal at oral argument, firing many questions at the attorneys. Justice Clarence Thomas, on the other hand, is normally quite reticent at oral argument. In most cases, he does not ask a single question.
What types of attorneys argue cases before the U.S. Supreme Court?
Most lawyers never argue a case before the U.S. Supreme Court. Some attorneys practice regularly before the U.S. Supreme Court as members of the Supreme Court Bar. The great Daniel Webster, a U.S. congressman and attorney from Massachusetts who lived from 1782 to 1852, argued nearly 250 cases before the U.S. Supreme Court. He was involved in many landmark decisions, such as Dartmouth College v. Woodward (1819), Gibbons v. Ogden (1824), and Charles River Bridge v. Warren Bridge (1837). John William Davis, who lived from 1873 to 1955, argued 140 cases before the U.S. Supreme Court, including Youngstown Sheet and Tube Co. v. Sawyer (1952) and Brown v. Board of Education (1954).
In the present-day, Tom Goldstein of Akin Gump Strauss Hauer & Feld LLP has argued sixteen cases before the U.S. Supreme Court by the time he was in his early 30s. His practice consists nearly entirely of U.S. Supreme Court cases. Other lawyers may argue one case before the U.S. Supreme Court, as they represented the litigant from the beginning of the case.
Those who serve as solicitor general, a position appointed by the president to argue for the United States, naturally argue many more cases than even those members of the Supreme Court Bar who regularly argue cases.
When does the Court hear oral arguments?
The Court generally hears oral arguments two weeks of every month from October through April. During the weeks of oral argument, the Court hears cases from 10:00 am to 12:00 pm E.S.T. on Monday, Tuesday, and Wednesday.
One of America’s greatest attorneys, Daniel Webster, argued nearly 250 cases before the U.S. Supreme Court. Brady-Handy Photograph Collection/Library of Congress.
After oral argument, when does the Court decide the case?
The Court meets in conference to discuss their initial votes in the case. The Court discusses the cases argued on Monday in its Wednesday afternoon conference meeting. For the cases argued on Tuesday and Wednesday, the Court discusses them in its Friday conference meeting.
The chief justice opens the discussions, outlining the applicable law and facts and his or her views of the case. This practice extends to all the justices in order of seniority. The justices also discuss how they plan to decide the case. The chief justice announces the vote. If the chief justice is in the majority, he or she assigns who will write the majority opinion for the Court. If the chief justice is in the minority, the most senior justice in the majority makes the opinion assignments.
There is no specific timetable for when the Court will issue its opinions, though in nearly all cases, the Court will issue a decision by the end of June. In a few cases, however, the Court will not issue an opinion and ask for re-argument. For example, the Roberts Court ordered re-argument in 2006 in the case of Garcetti v. Ceballos, a highly watched case involving the free-speech rights of public employees.
If the majority opinion becomes the law of the land, are concurring and dissenting opinions important?
Yes, concurring and even dissenting opinions can be important. Sometimes, the law will develop such that a concurring opinion will actually become the guidepost for future decisions in the area. A classic example was Justice John Marshall Harlan’s concurring opinion in the Fourth Amendment case Katz v. United States (1967). While Justice Potter Stewart wrote the Court’s majority opinion, Harlan’s concurring opinion and “reasonable expectation of privacy” test has become the opinion relied on by the majority of lower courts.
Types of Opinions
U nanimous opinion: An opinion in which all justices vote with the majority.
Majority opinion: This opinion, which must have five votes, is the ruling of the Court. It stands as precedent for future cases.
Plurality opinion: The main opinion of the Court but one that fails to command a majority of the justices. For instance, a case may have four justices agreeing with one opinion, two justices who file concurring opinions but not joining the other four, and three justices in dissent. In this 4–2–3 split, there is no majority opinion.
Concurring opinion: An opinion that agrees with the result but not the reasoning of the majority or main opinion of the Court. A justice who writes a concurring opinion may want to emphasize particular points of law or simply indicate that the main opinion reached the right result by taking the wrong path.
Dissenting opinion: