November 24, 2020

How the Supreme Court Decides Which Cases to Hear

Nation’s highest court rules on only 1% of requests

Americans may have heard the expression “take it all the way to the Supreme Court.” That simple phrase conveys two important facts: A Supreme Court hearing is the final stop for a court case; and a case that appears before the justices has traveled a long road.

Most cases don’t make it all the way to the Supreme Court. Every year from 2012 to 2019, the court received an average of 7,000 to 8,000 petitions for a hearing. Each year, the court has agreed to hear only about 80 of those cases.

The average number of cases the Supreme Court agrees to hear each year — out of 7,000 to 8,000 petitions

Why? The Supreme Court simply cannot grant a hearing to all the cases it receives. One reason is time. The court operates only nine months out of the year and has other business to attend to beyond reviewing and hearing new cases.

Another reason is merit. Not every petition is appropriate for the Supreme Court to accept. The U.S. Constitution specifies certain kinds of cases the Supreme Court has the power to consider and rule on, including cases that relate to treaties, diplomats and disputes between states.

In most situations, though, petitioners want the court’s nine justices to reconsider a case that has already been decided in a lower court. The federal government currently has 94 district courts and 13 circuit courts, as well as Bankruptcy Court and the Court of International Trade. In addition, every state has a network of courts. The petitioners hope the Supreme Court justices will then invite counsel from both sides to Washington, D.C., to make their arguments so the court can settle the issue once and for all.

The cases that do appear before the high court typically have some unique features.

The lower courts may have disagreed on an issue. In situations in which one court has ruled one way and another court has ruled another, the Supreme Court justices may choose to intervene and clarify the law.

The court also hears cases that answer important constitutional questions, like the extent of state powers. It also looks for cases that will affect the whole nation, such as ones dealing with an individual’s right to expression and the freedom of the press to operate.

Thousands of petitions for hearings roll in through the court’s electronic filing system, by mail, or in person. The justices’ clerks, top legal positions usually held by recent law school graduates, write a summary of each petition, along with a recommendation about what the court should do about it. On Wednesdays and Fridays, the justices gather in a private conference to make a decision. If at least four of the nine justices vote in favor of accepting it, the court will hear the case.

If the justices decline to hear a case, only they know why. They never comment on why they have declined a petition. Elder Witt, coauthor of The Supreme Court and the Powers of the American Government, notes, “The thing about the Supreme Court that I caution — I would always caution anyone about — is, with a few exceptions, it’s hard to read their minds.”

Whatever the reason, the thousands of people whose cases are declined by the court every year must accept the decision made in the lower courts.

The cases that are heard by the Supreme Court, however, leave an indelible mark in our country’s history, and in many instances clarify Americans’ rights, privileges, and responsibilities.

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