Judicial Review

The jurisdiction of the Court to hear cases is of two types: original and appellate. Cases of original jurisdiction are those for which the Supreme Court is the court of first rather than last resort, such as suits between states; that is, the Court is the trial court for these cases. Other examples of original jurisdiction are certain limited appeals from cases involving the reapportionment of legislative districts and the disposition of questions of law from lower courts. Most cases the Court hears, however, are cases of appellate jurisdiction, appeals after a judgment in a lower court.

The Court hears appellate cases only at its own discretion. To seek a review of one's case by the Court, a party must file a petition for a writ of certiorari, which is a command to the lower court to send the record of the case to the Supreme Court for review. The justices vote on each petition, and if four of them want to hear the case, certiorari is granted. If certiorari is denied, no further litigation is possible and the matter is closed.

For certiorari to be granted, appeal from a decision of a lower federal court must involve a constitutional question or a question of federal law. If the case arose in a state court, all state appeals must have been exhausted. The Court denies certiorari in the great majority of cases; the controversy of individual parties is of less concern to the Court than unresolved questions of constitutional interpretation and federal law.

If certiorari is granted, the record of the case is delivered to the Court, along with briefs by the appellant and appellee (sometimes called petitioner and respondent), and the procedure from there follows the outline given above. The Court then reviews the record, and oral argument is heard by the Court. The appellant and appellee are each allowed a brief time in which to argue their positions. A party may not have time to discuss all the issues; thus the party's brief must contain the argument as well, in all its particulars. The justices may question the appellant and appellee when they present their oral arguments, even interrupting them to do so if they desire.

After oral argument is heard, the justices meet in private and discuss the case, and later vote on its disposition, with the majority vote determining the outcome. A opinion is then written and issued; the chief justice assigns the writing of the opinion, unless he is in the minority, in which case the senior justice in the majority assigns the writing. Drafts of the opinion may be discussed and revised before the final version is issued. A justice or justices may write a concurring opinion if they have reached the same conclusion for other or additional reasons or they wish to stress some point not mentioned in the majority opinion. A minority member or members may issue a dissenting opinion explaining their reasons for disagreeing with the majority.

If the judgment of the lower court is affirmed, the matter is concluded. If error is found, the Court may modify the judgment, reverse it, or remand it to the lower court for further proceedings.