The U.S. Supreme Court Docket

February 17, 2014

My friend the judge—when I call him to go to lunch he answers “this is the judge”—never wants for business. He takes what comes and if he recuses himself because of a conflict—he knows one of the parties, one of the attorneys is a very close friend, etc.—someone else will have to handle the matter. That is the way of judging at the trial level and in most appellate courts.

Alas, the highest appellate courts in the states and the United States Supreme Court control their dockets mostly, deciding which cases to hear and not hear. (Certain states mandate “highest court review” of all cases involving a death sentence.) The United States Supreme Court has original jurisdiction over a very small number of cases. In all others, the Court decides whether or not it will accept the case for review.

The Court has original—as opposed to appellate—jurisdiction in cases involving ambassadors and certain others, and in cases between the states. Arizona v. California, a dispute over, you guessed it, water, was litigated between the 1930s and 2000, and will almost certainly find its way back to the Court in the future. (Absent a miracle, Arizona and California will have more residents tomorrow than each had yesterday, and the Colorado River will have less water to meet their needs.)

With respect to appellate jurisdiction, the Court chooses its docket from among cases decided by the 13 circuit courts of appeals and certain other federal courts. It also takes cases involving issues of federal statutory or constitutional law, decided in the state courts. These cases often involve criminal defendants and search and seizure, right to counsel, jury trial, or cruel and unusual punishment issues.

Most commonly, the Court looks for cases of cases of special importance, or those in which conflicts exist among circuit court decisions. The Court considered the Affordable Care Act cases in 2012 because the issues affected tens of millions of people, and because the circuit courts had issued inconsistent opinions. Bush v. Gore—the 2000 case that decided the presidential election—got reviewed because at least four justices believed the Court needed to settle the election. And, in fact, five justices did with their ruling bring the post-election events to an end.

Other “big deal” cases that have gotten consideration in recent years related to gun rights, affirmative action, same-sex marriage, and campaign finance and other First Amendment issues. The Court does not limit itself to “big deal” cases, however. In every term it decides some pretty routine, mundane matters. Most Court terms see a few tax and bankruptcy cases. Matters involving the enforcement of arbitration clauses in contracts, patent disputes, antitrust cases, and other matters of concern to business also find their way onto the docket. These cases can impact millions of people, but because the issues are not often part of the daily political discourse, their effects can be hidden.

Of course, by design the Court is an anti-democratic institution. We don’t vote for the justices, they wield immense power, and they sit for life. We often hear the phrase “elections have consequences,” and those consequences may not be greater anywhere than in the highest court in the land.

I think the best daily source for information about the U.S. Supreme Court is SCOTUSblog. Check it out!


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