The Supreme Court Today Part 2

The Role of Clerks

• As early as 1850, Supreme Court justices asked Congress to approve hiring a clerk for each justice.
• Later on, a justice hired a clerk and paid them using personal funds.
• In 1886, Congress authorized each justice to hire a stenographer clerk for $1,600 annually.
• Clerk stenographers provide administrative support, taking notes, transcribing recordings, and producing documents with software.
• Clerks are typically selected from top graduates of prestigious law schools.
• Clerks influence which cases receive a second look by making the first pass through petitions.
• Clerks research cases, summarize materials, and assist justices in writing opinions.
• The number of clerks employed by justices has increased over time.
• The number and length of the Court's opinions have grown with the increase in clerks.
• In 2005, the nine justices employed a total of thirty-four clerks.
• The number of cases decided annually increased as more help became available to the justices.
• Relationships between clerks and justices are close and confidential, and kept secret.
• Clerks may discuss justices' views and personalities among themselves, but rarely leak information to the press.
• In 1998, a former clerk to Justice Harry A. Blackmun, Edward Lazarus, wrote an insider's account of the Court.
• The justices give their young, ideological clerks too much power.

How a Case Survives the Process

• There is difficulty determining the reasons for the Court’s case selection.
• The standards for granting or denying review are personalized and discretionary, according to former Chief Justice Earl Warren.
• Political scientists have found that the characteristics of cases the Court accepts are similar to those that get on the discuss list.
• The federal government requesting a review can impact case selection.
• When a case involves conflict among circuit courts, it has a increased chance of selection
• Cases involving civil rights or civil liberties questions are more likely to be selected.
• If a case involves ideological or policy preferences of the justices, it may be selected.
• Cases will have significant social or political interest, evidenced by interest group amicus curiae briefs.

The Federal Government

• The solicitor general, appointed by the president, is the fourth-ranking member of the Department of Justice.
• The solicitor general handles most appeals on behalf of the U.S. government to the Supreme Court.
• The position the solicitor general takes on a case is a key indicator of whether the Court will hear it.
• Often referred to as the Court's "ninth and a half member."
• The solicitor's staff is like a small, specialized law firm within the Department of Justice.
• The solicitor general's office has a special relationship with the Supreme Court, with offices in the Supreme Court building.
• The solicitor general represents the U.S. government as a party or amicus curiae in over 50% of cases heard each term.
• The solicitor general's office has overwhelming success before the Supreme Court due to a special relationship.
• The Court generally accepts 70-80% of cases where the U.S. government is the petitioning party, compared to about 5% of all others.
• The solicitor general plays conflicting roles: representing the president's policy interests and the broader interests of the United States.
• Solicitors sometimes find it difficult to reconcile these two roles.

Conflict Among the Circuits

• The justices want consistency throughout the federal court system for interpretations of constitutional or federal law.
• Conflict among the lower courts is another reason justices take cases.
• Justices' evaluations of lower court decisions are largely based on their ideological position, according to Lawrence Baum.
• Conflicts often arise when important civil rights or civil liberties questions are involved.
• Conservative justices may vote to hear cases to overrule liberal lower court decisions, and vice versa.

Interest Group Participation

• The nature of the case and amount of interest group participation are major factors.
• Cases with interest group participation are not "orphans in the night," according to Richard C. Cortner.
• Most Supreme Court cases involve either the government or an interest group as the sponsoring party or amicus curiae.
• Interest group participation can act as a quick measure of ideological ramifications of a civil rights or liberties case.
• Amicus briefs significantly improve a case's chances of being accepted.
• Two, three, and four briefs improve the chances even more.
• More briefs are better, whether filed for or against granting review.
• Interest group participation highlights lower court and ideological conflicts for the justices.
• Interest group participation can alert the justices to the amount of public interest in the issues of a particular case.