It’s that time of year when the Supreme Court is about to make big news. A lot of the coverage of the court will include a lot of legal jargon (as well as missing key parts of the decision). Since it’s been some time since the last time that I did this, here is a summary of some of the key terms as a prelude to a follow-up post discussing what is still left to be decided this year.
Supreme Court Term — The Supreme Court runs on an annual calendar. Officially, the term runs from the first Monday in October and runs for the next twelve months. Unofficially, the term usually runs from the last week of September until the last week of June. Because the Supreme Court traditionally finishes its work for the term before the end of June, June becomes a very big month as eight months of piled up work gets released over four weeks.
Argument — If the Supreme Court grants full review, the Supreme Court will schedule the matter for an oral argument. Typically, each case gets an hour for argument (but that may get extended). During the argument, in theory, the attorneys get to present the reason why their side should win, but they also have to answer questions from the justices. Typically, the task of answering questions takes up most of the attorneys argument time.
Argument Session — The Supreme Court schedules arguments in two week blocks or sessions. Assuming no holiday (in which case the session has one fewer argument day), arguments are scheduled on Monday, Tuesday, and Wednesday. The argument on the first case on the day starts roughly at 10 a.m. (depending on any preliminary matters). If there are more than two cases set for the day, there will also be an afternoon argument on that day. There are seven argument sessions per year (one per month between October and April). There are between two and four weeks between argument sessions (the longer breaks occurring after the December and January sessions wit the other breaks being two weeks).
Conference — A meeting of the nine Justices to discuss pending cases — both cases seeking review and those cases which have been argued. During the seven months in which there are arguments, these conferences are typically on Friday and take place on the Friday before each argument session and each Friday during the argument sessions. (There are a handful of exceptions. For example, rather than hold a conference on the Friday after Thanksgiving, that week’s conference — if there is one — will be on Tuesday or Wednesday.) After the end of the last argument session, the conference moves to Thursday. Only the justices attend the conference (no support staff), and they are confidential.
Petition for Certiorari — Sometimes called a cert petition or, more formally, a petition for writ of certiorari. This is the most common way for seeking full review of a case. Technically, a writ of certiorari is an order to a lower court requiring that court to send its record to the higher court for review. A petition asks the court to grant review of the decision of one of the thirteen circuits of the U.S. Court of Appeals or a state high court (typically, but not always called a state supreme court). (A decision by a state high court to decline review of a lower appellate court is enough to permit supreme court review.) A petition will include a “questions presented” section that identifies the legal issue that the party wants the Supreme Court to decide. The Supreme Court has several options in dealing with a petition (in order of frequency): 1) deny the petition; 2) grant the petition, set aside or vacate the lower court decision, and send the case back or remand for the lower court to reconsider the case (typically in light of a recent decision); 3) grant full review; or 4) summarily reverse (i.e. reverse without full review), typically accompanied by a short opinion.
Appeal — For the most part, the Supreme Court is a court of discretionary review. In other words, it gets to choose which cases it takes via the certiorari process. However, by law, there are a small number of cases on which they have to accept the appeal for review. Typically, these cases (often related to voting rights law) are originally heard by a three-judge panel at the trial level. (Most trials are heard by a single judge, sometimes with a jury.) On an appeal, the Supreme Court has the options of: 1) summarily affirming (with or without opinion); 2) summarily reversing; or 3) granting full review.
Original Jurisdiction — For the most part, the Supreme Court is an appellate court. That means that it does not take any evidence in a case and merely reviews a case for legal error based on the record of the evidence presented in the trial court. However, the Constitution provides for the Supreme Court to conduct the trial in a handful of cases — mostly involving one state presenting a claim against another state. Typically, in these cases, the Supreme Court will appoint an experienced attorney with expertise in the area of law implicated by the case (often disputes over water rights). This attorney will take evidence and issue a report to the Supreme Court with a proposed disposition. If one of the states disagrees with that report, they file objections. If a party files objections, the Supreme Court may grant full review of those objections (or summarily dispose of those objections).
Full Review — If the Supreme Court grants full review, the parties will be entitled to file a written document (called a brief) in which the attorneys for that party set out their view of what the law is/should be on that issue and why — in light of that proposed reading of the law — the lower court got the right or wrong result. The petitioner (the party that lost below) has to file their brief first followed by the brief for the respondent (the party that won below) followed by a very short reply brief from the petitioner. In addition to the parties, outside groups (called amicus curiae) can also file briefs reflecting their groups interest in the matter and why that group thinks that a particular reading of the law would be appropriate. For example, in a case involving mental health issues, groups of psychiatrist might file briefs explaining how mental health issues play out in the real world and arguing for a rule of law that reflects reality.
Opinion — An explanation by one of more justices of the reason why the justice(s) think that one party should prevail and explaining the rule that should be followed in future cases. Most commonly opinions are issued after full review on the merits, but they can also be issued after a summary decision or to explain a justice’s position on a decision to deny full review. Other than the desire to issue all opinions for the term by the end of June, it is impossible to predict when the opinions in a case will be issued.
Per Curiam opinion — An unsigned opinion (i.e. does not identify the justice who wrote it), typically used with summary decision.
Opinion Assignment — At the conference held immediately after argument on the case, the justices take a tentative vote. Based on that vote, the “senior justice in the majority” assigns the case to one of the justices to take the first shot at writing an opinion. If the Chief Justice is in the majority, he is the senior justice in the majority. If not, the Associate Justice in the majority with the longest service on the court is the senior justice in the majority. (Currently, Justice Kennedy is the most senior associate justice. As it is the rare case in which both Chief Justice Roberts and Justice Kennedy are in the minority, typically one of these two will be assigning an opinion.) There is a practice of trying to keep workload balanced — both for each argument session and for the term as a whole. This practice can give hints to which justice initially received an opinion based on the opinions that have already been issued for a particular argument session.
Majority Opinion/Opinion of the Court — An opinion joined by at least five members of the court (the author and four others). A majority opinion disposes of the case and provides the rule of law in future cases.
Plurality opinion — An opinion that fails to garner the support of five justices. In this case, typically one or two justices agree with the result reached by the plurality but disagree on the rule to be applied by the lower court on remand or in other cases going forward.
Controlling opinion — If there is a majority opinion, that opinion is the controlling opinion for future cases. When there is no majority opinion, it is less clear what rule should be followed by lower courts in future cases. Currently, the rule of thumb is that lower courts should follow the narrowest opinion supporting the judgment. However, one of the cases argued this year challenges this rule.
Opinion concurring in the judgment — An opinion issued by a justice who agrees with the result but disagrees with the reasoning of the majority. Typically, this justice would apply a different rule, but the party that prevails under the majority rule still prevails under this alternative rule.
Concurring opinion — A separate opinion issued by a justice who joined in the majority opinion further explaining that justice’s opinion. These opinions tend to fall into two categories. First, a justice may find some language in the majority opinion is ambiguous and could be interpreted too broadly. That justice may right an opinion to clearly state the justice’s understanding of the limits of the rule set forth in the majority opinion. Alternatively, the justice may see an issue in the case that was not raised by either of the parties. The justice may opt to write an opinion noting that issue and stating that the justice would be interested in addressing that issue in a case in which it is properly raised.
Dissenting opinion — A separate opinion issued by the justices in the minority who would have had the other party prevail.
Split opinion/Join in part — Particularly, in a case in which there are multiple issues, it is possible that one or more justices will agree with the main opinion on some issues but not others. Thus, a justice could potentially join Part I and Part II of the opinion, but not Part III. In such a case, an opinion might be a majority opinion for some parts, but merely a plurality opinion on other parts. In very rare cases, the voting alignment means that there are two separate opinions which speak for the majority on some parts of the case.
Affirm — Basically, the party that won in the lower court prevails at the Supreme Court. Whatever remedy was ordered by the lower court stays in effect.
Reverse — The party that lost in the lower court prevails at the Supreme Court (a very frequent result). Typically, reverse means that the Supreme Court gives very specific directions to the lower court for what to do when the case returns. Often, but not always, signals that the Supreme Court thinks that the lower court got the wrong result.
Vacate — Not quite a synonym for reverse. It is most often used in cases in which the Supreme Court thinks that the lower court used the wrong analysis with the Supreme Court taking no position on who should win under the correct analysis. The Supreme Court merely identifies the correct analysis and leaves it to the lower court to apply it. Alternatively, used if the lower court only addressed one issue (finding that the one issue made it unnecessary to address the remaining issues), and the Supreme Court finds that the lower court was wrong on that one issue, but leaves it to the lower court to address the remaining issues.
Order List — A document issued (typically on the Monday after each conference) listing the disposition of pending petitions for certiorari and direct appeals. Since only 1% of cases receive full review, most of the list covers the many cases that will not receive full review.
Miscellaneous Order — A document issued separately from the regular order list. Sometimes the document covers an individual case in which one of the parties has requested the Supreme Court to grant relief from the enforcement of a lower court order. When there is a scheduled execution, you may get three or four miscellaneous orders covering the multiple petitions filed seeking to prevent the execution. Particularly in the fall, the Supreme Court issues miscellaneous orders after the weekly conference that impact the cases that are getting full review.
