Choosing Cases

_____ Supreme Court History _____
Past Justices
Choosing Cases
Oral Arguments
Making Decisions
Historic Cases
The justices that sit on the Supreme Court determine which cases to take on. They never explain the reason for their choices.

Whether or not a case is accepted "strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment," Chief Justice William H. Rehnquist wrote in "The Supreme Court: How It Was, How It Is," his 1987 book about the court.

Important factors, he said, are whether the legal question has been decided differently by two lower courts and needs resolution by the high court, whether a lower-court decision conflicts with an existing Supreme Court ruling and whether the issue could have significance beyond the two parties in the case.

Room where justices choose cases
In this room the justices meet to decide which cases to hear. The most senior associate justices use the roomier side at the left, backs to the warm fireplace. (The Post – Ray Lustig)

For example, the justices likely accepted the sexual-harassment case brought by Paula Jones, a former Arkansas state employee, against former President Bill Clinton because it would test the important question of whether a president should have to defend himself against a lawsuit while in office. Yet the justices do not automatically take on all cases posing significant societal dilemmas.

The nine justices vote to determine which cases the court will hear. Cases taken on must garner at least four votes to accept a petition for review. If a petition is granted, oral arguments are then scheduled.

Before those votes are cast in a closed-door session, however, a case must pass muster with several of the youngest, least experienced lawyers in America – the 36 law clerks who serve the individual justices and who, in effect, are their staff for a term. These clerks, most often four to a justice, usually are recent law school graduates and typically the cream of their Ivy League schools.

It is the clerks who first winnow the 7,000 or so annual petitions, settling on the select few that they believe the justices themselves should consider. There is no set number or quota for each week's conference.

With the clerks' memos in hand and in the closed conference room, the justices summarily reject most of the appeals. They discuss petitions flagged by one or more of the justices. Then, according to justices' public accounts over the years, they vote aloud, one at a time by seniority but starting with the chief justice.

While the chief justice leads the meeting, the most junior justice, now Stephen G. Breyer, makes handwritten notes that will be passed to a clerk for public announcement of disposition of petitions. Rehnquist is known for running a brisk session. "Bam! Bam! Bam!" one associate justice said in describing the group's swift disposition of cases.

© Copyright 2001 The Washington Post Company

Back to the top