Hi, I’m Craig, and this is Crash Course Government
and Politics and today, finally, we are stepping into the big leagues. That’s right, I’m trying
out for the Cubs. No, we’re gonna talk about how the Supreme Court of the United States
actually works! I could try out for the Cubs right, Stan? Sometimes people refer to it by the unfortunate
nickname S.C.O.T.U.S but I’m not gonna do it, I’m gonna call it the supreme cocoa, or
cocoa supreme. Now, let’s just be respectful. So strap in and get ready for some highly
technical discussion of procedure as we learn how you, yes you, probably not you, can bring
a case to the Supreme Court. [Theme Music] The first thing you need to take a case to
the Supreme Court is a case, or controversy, and except in certain rare situations where
the court has original jurisdiction, that case has to have already heard and decided
by a lower court and appealed. And not just once; before a case gets to the Supreme Court
you have to have exhausted your appeals at lower levels of the state or federal system.
If you’ve lost your previous appeals but still think that you have an issue worthy of the
court’s attention, you can petition for a writ of certiorari, which people in the know call “the cert”
’cause they’re keepin’ it cash…which is short for casual. For a look at how the court chooses its cases,
let’s go to the Thought Bubble, or the thobub. Lot of nicknames today, Stan! Or ST. Certiorari
is a formal request that the Supreme Court hear your case, but petitioning for a writ
is no guarantee of anything. The federal government’s chief lawyer, the solicitor general, is basically
like a bouncer at a hot club, if you’re old enough to get into a hot club. They screen
out a lot of petitions because those cases don’t raise a lot of federal law questions
or because they’ve already been decided in other cases, or they’re not wearing good enough
shoes to get into the club. If, and it’s a big if, your petition is granted,
it goes into the cert pool – the first round in which the justices decide which cases they’re
actually going to decide. The list of cases that will be decided is called the discussion
list. For the judges to actually hear the case, called granting certiorari, 4 of the
9 justices have to agree to hear it. This is called the rule of 4. The discussion of
the discussion list and decision about whether or not to grant certiorari happens at the
conference, which is like the back of the club where the really well-dressed people
go. So the judges have read your petition and
4 of them have decided that your case is one of about 80 that they will hear, congratulations!
Now you, and the side that disagrees with your position, have to submit briefs. Briefs
are not underwear; briefs are written legal arguments from each side explaining why the
law favors their position. The party bringing the case seeking to overturn the lower court
decision is the petitioner. The party that wants the court to uphold or affirm the lower
court’s decision is called the respondent. The petitioner also files a reply, which attempts
to rebut the respondent, which is not a euphemism. After filing all this, you’re finally on your
way out of the Thought Bubble. I mean you’re on your way to court. Thanks thobub. You might think that there would only be two
briefs in a case, one from each side, and it’s true that there must be at least two.
But often there are many, many more briefs, and even boxer briefs! That’s what Stan wears.
Stan put your pants on! All undergarments aside, individuals or groups who are not actually
parties to the case, but have an interest in the outcome can also file amicus curiae,
or friend of the court briefs. Amicus briefs often contain different legal, economic, or
historical arguments that can sometimes persuade justices and appear in their opinions. They
are also one way that interest groups can attempt to influence the Supreme Court. After the briefs have been filed, the court
schedules oral arguments, giving them time to read and consider the briefs. Each side
gets half an hour to make its case, but this time includes questions from the justices,
so most of the time it’s usually spent answering questions. Imagine a presentation with the
most intense teacher you’ve ever had bombarding you with questions, except that there 9 teachers!
Well, 8 because Clarence Thomas never speaks. After oral arguments, you wait for a decision.
The justices then meet in another conference which is held on a Wednesday or a Friday,
’cause there’s good TV the other days. In order for the court to render an official
decision, 5 of the 9 justices, a majority must agree on at least one of the legal arguments
that either affirms or overturns the lower court’s decision. Although they can also send
a case back down to the lower court for another decision, which is called a remand.
Although, you might call it… a punt! Woo! That was like 30 yards. The chief justice presides over the conference
and assigns the task of writing the court’s decision, called the majority opinion. The
opinions are given in writing, although sometimes justices will read them from the bench. Sometimes
the court will issue a single majority opinion which is a very strong statement of unified
agreement. In the key civil rights case of Brown v. Board of Education, the court issued
a single opinion that was even stronger because it was unanimous. But sometimes the court
will issue multiple opinions on the same case. The decision of the court either to affirm
or overturn the lower court’s ruling is called ‘the holding’, and this is the first thing
you need to know in any Supreme Court decision. The second thing that matters is the legal
reasoning, or rationale, behind the holding. If a justice agrees with the holding in the
majority opinion, but for different legal reasons, they write a concurring opinion.
The rationale in this concurrence is cool and everything, but the lower courts do not
need to follow it. Only the holding of the majority and its rationale are binding on
lower courts. A single justice writes a concurrence, but other justices can sign onto it if they
agree with its logic. For instance, the eagle and I both agree that fish are delicious,
but I would write a concurrence that the scales and the eyeballs are gross. It’s unlikely
this will go to the Supreme Court though. Let’s solve it now. Problem solved. Many Supreme Court cases are not unanimous.
In fact, in an ideologically divided court, you are likely to find a lot of cases decided
by 5 to 4 margins. The judges who are on the losing side who didn’t support the majority
decision can write a dissenting opinion. A dissent does not set a precedent for a lower
court and has no force of law, but often dissents are very eloquent and they can provide arguments
that might persuade later courts in similar decisions. Sometimes, as with the famously
bad case of Plessy v. Ferguson, the arguments in a dissent can form the foundation for the
majority opinion in a later case, even though it can take 50 years to get from a case like
Plessy to Brown v. Board of Education. So that’s the nuts and bolts of how Supreme
Court decisions are made. But before we wrap this up, here are a few key things to remember.
First, there are a lot of hurdles you need to jump over before a court makes a decision
in a case. Most certiorari petitions, there are usually about 8,000 each year, don’t make
it past the clerks or the solicitor general, and don’t get granted. It takes 4 judges to
agree to hear a case, but 5 to render a majority opinion. Only the holding and the rationale
supported by at least 5 of the 9 justices becomes binding precedent for lower courts.
Dissents and concurrences may be fun and interesting to read, especially if there are pictures,
and they may include important legal ideas, but lower courts don’t need to follow them.
So that’s how to court works procedurally, but there’s another way to think about Supreme
Court decision-making. To really understand the Supreme Court, we need to consider the
thinking behind judicial decisions, but that’s for another episode. Thanks for watching. Crash Course Government and Politics is produced
in association with PBS Digital Studios. Support for Crash Course U.S. Government comes from
Voqal. Voqal supports non-profits that use technology and media to advance social equity.
Learn more about their mission and initiatives at voqal.org. Crash Course was made with the
help of these cocoa supremes. Thanks for watching.