Stages of a Supreme Court Case

The Supreme Court may be the first court to hear a case in rare situations, such as disputes between states. However, it is generally limited to hearing appeals from other courts. A case may come to the Supreme Court from a U.S. Circuit Court of Appeals, which heard the initial appeal of the case. The Supreme Court also may review a case decided by the highest court in a state if it hinges on questions of federal law. The Supreme Court will not review a state court decision that is based on “separate, adequate, and independent state grounds.”

Appealing a decision to the Supreme Court triggers a series of specific procedures. This overview explains each step from the initial petition for review to the final publication of opinions.

There is no absolute right to have the Court hear an appeal. Someone who wants to appeal to the Court must file a petition for a writ of certiorari. The Justices will receive briefs and potentially amicus briefs on whether the writ should be granted. They then will decide at a conference whether to grant the writ. (Briefs, amicus briefs, and conferences play a larger role later in the case and are discussed in more detail below.) This decision does not require a majority. Only four of the nine Justices must agree to grant a writ of certiorari. This tells the lower court to prepare the record for review by the Supreme Court, and the case is placed on the Supreme Court docket.

If the Court denies a writ of certiorari, the decision of the lower court stands, and the case ends. This happens in the overwhelming majority of cases. Only a tiny fraction of these petitions are successful. The Court may be more likely to grant a writ of certiorari if lower courts have reached clashing decisions on the issue, or if it has broad national significance. Granting a writ of certiorari does not necessarily mean that the Court thinks that the lower court was wrong. However, the Court recently has reversed much more often than it has affirmed.

The party that asked the Court to hear the case is known as the “petitioner,” while the other party is known as the “respondent.” The petitioner must file a document called a brief that explains their legal arguments for why the lower court was wrong. The respondent then files a brief explaining why the lower court was right. Each side also can file briefs responding to the initial positions outlined by their opponent.

The Court may allow people or entities that are not parties to a case to file amicus curiae briefs if they have an interest in the outcome. These briefs advise the Court on how a case should be analyzed and decided. (Amicus curiae means “friend of the court.”) An amicus brief may be especially persuasive when a case involves a distinctive field in which the author of the brief has expertise.

After reviewing the briefs, the Court will hear in-person oral arguments. Generally, only one attorney may argue for each party. Oral arguments last an hour in total, so each side has 30 minutes. The petitioner may reserve time to rebut arguments by the respondent, which means that they will speak before and after the respondent’s arguments. Otherwise, oral arguments conclude with the respondent’s arguments.

An oral argument is not a single 30-minute speech. Although each side opens with a formal introduction, oral arguments largely involve the attorneys answering questions from the Justices related to their briefs. This allows the Justices to clarify their understanding of nuances that may be important to the decision.

Oral arguments are held in the first two weeks of October, November, and December, and in the last two weeks of January, February, March, and April. They are generally held only on Mondays, Tuesdays, and Wednesdays.

The Justices sometimes know how they will vote in a case after oral arguments, but often they are still undecided. To discuss and vote on a case, they hold conferences on Wednesdays and Fridays. Wednesday conferences cover Monday oral arguments, while Friday conferences cover Tuesday and Wednesday oral arguments. While a Justice may discuss the case with their law clerks before a conference, law clerks are not allowed to participate in the conference.

At the beginning of the conference, each Justice shakes hands with each other Justice. Chief Justice Melville Weston Fuller started this tradition near the end of the 19th century. The conference starts by reviewing petitions for writs of certiorari. Once these have been resolved, the Justices will proceed to cases that were recently argued. Each Justice will have time to explain their position on the case in an uninterrupted statement. The Chief Justice delivers the first statement, and the Associate Justices speak in descending order of seniority.

The process of voting proceeds similarly. Once the statements have ended, the Chief Justice votes first, and the Associate Justices vote in descending order of seniority. The votes are counted, and then a Justice is selected to write the opinion of the Court. If the Chief Justice is in the majority, they usually will choose this Justice. If the Chief Justice is not in the majority, the most senior Justice in the majority probably will make the selection.

Sometimes an even number of Justices decides a case. This might happen when a Justice recuses themselves, such as when they ruled on the case in a lower court before their appointment to the Supreme Court. Or perhaps a Justice has died or retired, but their seat has not been filled. This creates the possibility of a tie, which means that the decision in the lower court stands.

The Justice who writes the opinion of the Court must make sure that it properly expresses the views of all the Justices who voted in the majority. This is because a majority of the Justices must sign onto the opinion, showing that they agree with it in its entirety, before it is publicly delivered. An opinion is not official until then. There have been rare situations in which a Justice changes their vote after reading the drafts of the majority opinion and the dissenting opinion in a 5-4 case. This turns the dissenting opinion into the majority opinion and vice versa.

The Justice who wrote the opinion of the Court will summarize it from the bench during a regularly scheduled session of the Court. It will then become available to the public, together with any other opinions in the case, in various temporary printed forms. Ultimately, all the opinions in a case will be published officially in case books known as the U.S. Reports. These volumes are compiled and published by the Reporter of Decisions, who is a statutory officer working under the direction of the Court. Their office is on the second floor of the Supreme Court Building. The Reporter of Decisions also provides a syllabus that summarizes the case and the main legal principles arising from it.