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There have been some outstanding judges in the U.S., as for instance Justices Holmes and Cardozo who were judges for most of their lives. On the other hand, Justices Sutherland, Byrnes and Black had worked as Congress members, while Justices Jackson and Reed had served as officials of the executive branch. Indeed, the life of the law is determined by the influence of its greatest judges.

5.3c A Case comes to the Supreme Court

The Supreme Court receives thousands of requests for review (writ of certiorari) based on particular issues in a case, every term. The justices’ law clerks then screen and summarize these appeals. The judges sit in conference twice a week. On the day before the conference each judge receives a list giving the cases that will be dealt with at the conference, together with the order in which they will be considered. The judges are expected to examine the petitions and briefs upon current applications for certiorari, and also the papers in the miscellaneous motions affecting cases that have been docketed. According to the rule of four, four of the nine justices need to agree to decide the cases that need to be reviewed. It is a general practice of the Supreme Court to not consider over a hundred cases in a year. The unconsidered ones then are obliged to accept the decisions of the lower courts.

5.3d A Case before the Court

Counsels on each side have to file, with the Supreme Court, a brief covering the arguments and relevant material of the case. Unlike what it may seem, a brief can run into a lengthy document, as it needs to take into account all the sociological, historical and scientific evidence as well as the legal arguments. The brief must contain an index of its subject matter and a table of cases, statutes and textbooks that have been cited within. The brief should also include a summary of the Counsel’s argument "exhibiting clearly the points of fact and of law being presented, citing the authorities and statutes relied upon...." An amicus curiae brief (meaning "friend of the court") may be submitted by those who are interested, but not directly involved in the case. Oral arguments may also be used by Counsels, to present their case to the Court. Each side is allotted a limited time of thirty minutes.

5.3e A Decision is reached

The justices meet in conference, arranged around a conference table by seniority, in order to reach a decision of cases. The chief justice presides over a private discussion of cases that have been argued in public. Opinions are then drafted and circulated among the justices for revision or correction. The vote is taken and recorded. A decision may be arrived at, only when five justices give their vote, in case all nine justices participate.

At the succeeding conferences, the revisions are further discussed and finally the writer announces the opinion, as the opinion of the court, on the majority decision. However, if a justice disagrees with the majority opinion, he can enter a dissenting opinion in the record. If the justice agrees with the majority decision, but disagrees with the line of legal reasoning, he can write a concurring opinion. It is also possible that a particular lower court ruling may be retained as it is. This is known as the doctrine of stare decisis (that is "let the decision stand"). The Supreme Court opinions, both concurring and dissenting, are published by the federal government in an edition entitled ’United States Reports.’

5.3f The rationale for decisions

Since each case deals with a different set of legal issues, it has to be dealt with in the proper perspective. The court does not generally give decisions against precedent or the existing body of law. Statutory construction may be used to interpret laws. For this, the plain meaning of a law, or the legislative history of a law may be referred to by the court for interpretation.

Depending on their personal views, justices may be liberal, moderate or conservative. Those exercising judicial restraint try to interpret the law rather than create new law. They conform to statutes and precedents very severely. However the justices who follow judicial activism exercise a liberal interpretation of the Constitution to promote social and economic interests.

5.3g Implementing Supreme Court Decisions

The Supreme Court depends upon the executive and legislative branches to enforce its decisions, since it is not empowered to enforce them itself. It cannot for instance order troops in order to coerce the Congress or the President to comply with its mandate.


5.0 Introduction
5.1 The State Court System

5.2 The Federal Court System

5.3 The Supreme Court in Operation

Chapter 6

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