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The Judicial Process
How the Supreme Court decides which
cases to hear
• SC year lasts October – July, and they will hear
c. 100 cases
– Lower court may send a case to the SC (a writ of
– Petitioned to hear serious constitutional issue
• SC will choose if they want to accept the case
How the Supreme Court reaches a
Stage 1)
• Lawyers for each side present a brief (written statement
with legal arguments, facts and precedents)
• Amicus Curiae (friends of the court) briefs may be
submitted by other groups with an interest in the case (PGs
or gov. depts)
– 2003 Grutter v. Bollinger (should A Action continue?) the SC
admitted they were heavily influenced by AC from influential
groups (e.g. Armed forces)
Stage 2)
• Date set for oral arguments
– Each side has 30 mins to summarise their point
– Judges may interrupt to ask questions/challenge
Stage 3)
• Justices meet to discuss the case
• Vote
– All votes have equal weight
– Unanimous decision not required
Stage 4)
• Opinion will then be written that will explain the
decision to the general public and provide a guide
to lower courts considering smaller cases
• If judges are split – then a majority decision will
be written, with the minority explaining their
points of disagreement in a dissenting opinion
The role of Law Clerks
• Play a very important role
• They can write the first draft of the opinion to
be presented by the Justice they work for
• Huge responsibility (they may not have had
any previous legal experience
• Many clerks have successful legal careers –
some have risen to become SC Justices.
Judicial Review
The power of the Supreme Court to declare acts of
Congress, or actions of the executive – or acts of state
governments – unconstitutional, and thereby null and
• FF’s declared that the judiciary was ‘beyond
comparison the weakest of the 3 departments of
power’ (the SC did not even have its own building until
• However, SC’s decisions have had a powerful impact
since the beginning
– 1793 – SC ruled that a citizen had the right to sue a state,
thus leading to the 11th Amendment.
– A constitutional amendment was needed to overturn a
decision of the SC (an early indication of the Court’s
Marbury v. Madison - 1803
• Established that the Court had the power of Judicial
• 1801 President Adams appointed 42 new justices who
shared his views, and they were all confirmed by the
• 4 of them did not receive their letters of appointment,
and Adams ordered his Secretary of State (Madison) to
not deliver them.
• One of them applied to the SC to enforce his
• SC’s decision to declare Section 13 of the Judiciary Act
unconstitutional established that they had the right to
decide the precise meaning of the Constitution in
relation to specific cases.
Your Task
Give examples of the importance of Judicial
Review in :
• Interpreting the Constitution
• Becoming a political institution (W. Bush v.
• Quasi-legislative power
• Constitutional Basis for the court’s actions
• Judicial Restraint (and where practised)
• Judicial Activism (and where practised)