Chapter 2

The Court at work (1)

A disappointed litigant's vow to “take my case all the way to the Supreme Court!” is likely to prove an empty threat. An appeal on the way to the Supreme Court encounters many obstacles. Some derive from the Constitution itself; Article III limits the jurisdiction of the federal courts to deciding “cases” and“controversies,” although, as we shall see, the meaning of those words is hardly self-evident. Another obstacle is inherent in the Supreme Court's place in the federal system: the Court generally may not review a state supreme court's interpretation of a state's own constitution. For example, the Court could not have reviewed the Massachusetts Supreme Judicial Court's decision in 2003 to grant same-sex couples the right to marry under state law, because the state court based its decision on its interpretation of the Massachusetts Constitution (Goodridge v. Department of Public Health). (State high court decisions that interpret the U.S. Constitution do fall within the Supreme Court's jurisdiction, however.) Other obstacles to Supreme Court review stem from federal law. For example, Congress has set strict deadlines for filing Supreme Court appeals.

Someone who has followed all the rules and whose case falls cleanly within the Court's jurisdiction then encounters perhaps the most daunting obstacle of all: the justices' freedom to say no. Unlike most appellate courts, which must act on all properly presented appeals, the Supreme Court has nearly complete control over its docket. Year in and year out, the justices agree to decide only about 1 percent of the cases that reach them. The Court hears appeals from the thirteen federal appeals courts, the high courts of the fifty states, and occasionally from other courts, including the highest court in the military justice system, the United States Court of Appeals for the Armed Forces. A small category of cases, most notably appeals concerning voting rights and redistricting, reach the Court directly from special federal district courts. During the 2010–11 term, 7,857 new petitions for review reached the Court. Carrying over 1,209 petitions from the previous term, including forty that the justices had already agreed to hear but that had not yet been argued, the Court granted an additional ninety cases and issued a total of seventy-eight opinions.

Several recent examples illustrate the types of cases the Supreme Court decides and how the justices approach the task of decision. While there is no typical Supreme Court case, there is a typical range of cases during a given term, with the cases that the Court has chosen to review falling roughly evenly into two main categories. One category consists of cases of constitutional interpretation, usually involving a claim that a federal or state statute or policy violates a provision of the Constitution. The second category consists of cases requiring the justices to decide the meaning or application of a federal statute. A subset of this category consists of cases about the work of federal agencies. (A third category consists of suits between states—the one or two cases every year that fall within the Court's “original jurisdiction”to hear such disputes. These are often new chapters in longrunning disagreements over state boundaries or interstate water rights. The Court appoints a lawyer or retired judge as a “special master” to take evidence and make a recommendation. The process can take years.)