U.S. Supreme Court

The U.S. Supreme Court conducts appellate review hearings of lower-court decisions, relying on written briefs and oral arguments by counsel for the parties to help the justices formulate opinions as to cases’ outcomes. The number of petitions from parties seeking to have the Supreme Court grant a hearing on their appeal far exceeds the number of cases the justices are able (or willing) to take on. For the very few cases that reach the Supreme Court, there is a highly structured, formalized process waiting. Should a petitioner succeed in obtaining a hearing, his or her attorneys will be able to submit written briefs and participate in oral arguments. Thereafter, the case will fall entirely within the justices’ domain; processing of the case will include an initial justices-only conference, the exchange of draft opinions, and various types of interim decisions by the justices (e.g., on the standard of proof to which the government—if a party to the case—should be held), leading up to a majority’s ultimate decision to affirm or overturn the lower-court ruling.

Matters before the Court sometimes involve questions about human behavior. The need for behavioral science knowledge provides opportunities for professional organizations to submit their own briefs addressing relevant research areas. Guidelines and precedents exist for how justices may decide cases, but such parameters are often open to disagreement and justices may even fashion new rules. The interpersonal and cognitive aspects of the justices’ own decision making have also been studied. This entry examines the operations of the U.S. Supreme Court, the criteria used by justices in making decisions, the types of rulings issued by the Court, and the role of precedent in Court deliberations, as well as the various interfaces between it and psychological science.

Operations of the Supreme Court

The U.S. Supreme Court does not conduct “trials” in the sense of evidence presentation, cross-examination of witnesses, and original fact-finding. Rather, it conducts appellate reviews (i.e., hearings) of cases from lower appellate courts, such as a federal Circuit Court of Appeals or a state High Court. The one exception to the U.S. Supreme Court’s role as an appellate venue, which is very rare, is when the Court takes a case under original jurisdiction, as when there is a dispute between two states. In its typical appellate role, the U.S. Supreme Court will evaluate the soundness of the lower-court decision being appealed, with an eye toward whether the previous court acted properly in applying U.S. Supreme Court precedents, interpreting provisions of the U.S. Constitution, interpreting a statute, and so forth. Ultimately, a majority of the Supreme Court must decide whether to affirm or overturn the lower-court ruling.

An estimated 8,000 petitions for hearing are filed annually to the U.S. Supreme Court. In such petitions, the losing side at the previous level (petitioner) requests a full review and hearing at the Supreme Court, based on the contention that the previous court’s ruling contained reversible procedural error and that the case raises highly important statutory or constitutional issues. In only about 80 cases per year (based on recent years’ practice) does the Court grant certiorari (cert. for short), meaning that it agrees to hear the appeal. For cert. to be granted, at least four of the nine justices must vote to do so.

A case before the nine U.S. Supreme Court justices is highly structured. With the exception of extremely high-profile cases, to which more time may be devoted, a typical Supreme Court oral argument lasts for exactly 1 hour, with 30 minutes granted to counsel from each of the two sides. The justices can (and often do) interrupt attorney arguments to pose questions, with the time consumed by the justices counting as part of the arguing side’s 30 minutes. Written briefs submitted in advance by each side, as well as amicus curiae (“friend of the Court”) briefs submitted by outside parties, form the basis for the oral questioning. For an outside party to submit an amicus brief, consent must be obtained from the focal parties in the case or from the Court. Greg Stohr (2004) details how the University of Michigan, in preparing to defend its affirmative action admissions policies, actively sought supportive amicus briefs from groups including corporations and retired military leaders to buttress its argument for the importance of diversity in society.

On the next available Friday after oral arguments, a justices-only conference takes place, at which a straw vote is held to see how many justices are leaning toward voting for each side. The most senior justice in the (tentative) majority—with the Chief Justice treated as being first in seniority, regardless of length of service on the Court—has the choice of to whom to assign the writing of the (apparent) majority opinion. Other justices can draft concurrences or dissents, depending on their judgment of the case. Draft opinions are exchanged among the justices’ chambers, sometimes for months, with a justice who was originally planning to vote for one side sometimes being won over to the other side; such shifting coalitions may, of course, necessitate a reorganization of the writing of majority and minority opinions. Justices vary in the amount and nature of the work they delegate to their law clerks; the latter tend to have graduated from elite law schools and clerked previously for an appellate judge at a lower level.

Role of the Solicitor General

According to Lincoln Caplan (1987), “the Solicitor General’s principal task is to represent the Executive Branch of the [federal] government in the Supreme Court” (p. 3). In some cases, the U.S. government is one of the two focal parties to the dispute, whereas in others it is not. Overall, however, so influential does Caplan consider the Solicitor General (SG) to be that the former’s book on the history of the SG’s position is titled The Tenth Justice. Two ways in which the SG’s office has an impact on procedural aspects of Supreme Court cases are (1) its high success rate with cert. petitions relative to others who file and (2) its opportunity to participate in the oral arguments of some cases as a third party with its own block of time, when the U.S. government is not one of the focal parties. In the University of Michigan affirmative action cases mentioned above, for example, the SG was given 10 minutes each in the undergraduate and law school cases. Caplan suggests that, for much of its history, the SG’s office has enjoyed a reputation for thorough, impartial legal analysis in its briefs, thus possibly accounting for its influence with the justices.

Decision-Making Criteria

Just as jurors in a criminal or civil case use standards of proof in deciding how to vote in a trial (e.g., “guilt beyond a reasonable doubt,” “preponderance of the evidence,” “clear and convincing evidence”), federal judges—including those on the U.S. Supreme Court— have a number of guidelines and frameworks for deciding the cases they hear. At a general level, the Supreme Court’s role is to interpret the U.S. Constitution and federal statutes. In addition, the Court can establish new rules for deciding future cases. Among the many types of cases the U.S. Supreme Court decides, those involving the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution often are among the most high-profile ones. Furthermore, these types of cases illustrate one of the frameworks used by the justices in deciding how they will vote.

As a starting point, a state may pass a law restricting some type of behavior, such as certain forms of sexual conduct or the circumstances under which a woman can obtain an abortion. The initial inquiry would probably ask whether the statute threatened a “fundamental right” or imposed burdens on a “suspect class” (e.g., groups that have historically been subjected to discrimination). If the answer to this inquiry is “no,” the statute’s constitutionality is then evaluated by the Supreme Court justices (or federal judges on a lower court) according to what is known as the “rational basis” or “rational relations” test, which is considered a relatively easy standard for the government to meet in defending the law. Harry Krause and David Meyer (2003) note that “ordinarily, the Equal Protection Clause requires only that the lines drawn by the government be rationally related to the object of the legislation” (p. 25).

If, however, the Court determines that one or both of the aforementioned triggering conditions—intrusion on a fundamental right or against a suspect class—is met, the government will then be held to the more difficult “strict scrutiny” standard regarding its statute. This standard “presumes that the challenged action is unconstitutional, unless government can rebut…by proving that the intrusion on the fundamental right is necessary, or ‘narrowly tailored,’ to the advancement of a ‘compelling’ state interest” (Krause & Meyer, 2003, p. 23). A saying has developed reflecting many observers’ impression of the government’s difficulty in prevailing under strict scrutiny; the standard is said to be “strict in theory, fatal in fact.” Regarding Supreme Court justices’ ability to devise new standards, the former justice Sandra Day O’Connor’s test of whether abortion-related restrictions impose an “undue burden” on women’s access to the procedure is one of the most prominent examples in recent years.

A somewhat different, more linguistically related issue concerns statutory interpretation. Justice Stephen Breyer discusses some of the complexities of this seemingly obscure area in his 2005 book Active Liberty. The following is one example of such interpretive principles, in which Breyer draws on several different legal sources:

A canon of statutory interpretation, ejusdem generis, says that, if “general words follow specific words in a statutory enumeration,” courts should construe the “general words” as “embracing only objects similar in nature to those objects enumerated by the pre­ceding specific words.” (p. 92)

Such “canons of construction” are often discussed in law review articles.

Types of Rulings

Many of the U.S. Supreme Court’s best-known rulings are those that appear to bring final resolution to a matter. For example, once the Court’s final decision in United States v. Virginia (1996) was announced, observers knew instantly that the Virginia Military Institute could no longer exclude female students. Other cases, at the time they are decided, appear to provide finality to an issue, only to have it reemerge years later in a new line of cases. One recent example is how the Court shifted its stance on a constitutional right to privacy of sexual intimacy from Bowers v. Hardwick (1986) to Lawrence v. Texas (2003). What these cases all have in common, however, is that the U.S. Supreme Court rulings brought closure to the parties at hand, with no need for further hearings.

Not all cases at the High Court are like that. In some, the justices remand the case back down to a lower court for reevaluation in light of some new standard or ruling. A new round (or set of rounds) of hearings and determinations thus takes place in a lower court, far away from the spotlight of the U.S. Supreme Court, to which the case ultimately may or may not return. In Schlup v. Delo (1995), for example, the U.S. Supreme Court had to decide if the state prisoner Schlup’s habeas corpus claim of new exculpatory evidence should be evaluated by a lower court under the standard of “clear and convincing” evidence (harder for Schlup to prove) or, simply, greater likelihood than not (easier for Schlup to prove) that the new evidence would be able to sway a “reasonable juror.”

In other cases, the U.S. Supreme Court’s role is to decide if a lawsuit can go forward at the trial level (e.g., in a U.S. District Court). Subsumed under this larger issue are more specific questions, such as whether the parties bringing suit have legal standing to do so and whether an issue is one that can be properly deliberated and decided in the judicial arena, as opposed to legislative or other nonjudicial venues (if so, the issue is said to be “justiciable”). The landmark legislative redistricting case of Baker v. Carr (1962) is illustrative of such cases.

Overturning of Precedents

Many justices and commentators advocate adherence to precedents or stare decisis. However, as alluded to above, the Supreme Court occasionally reverses one of its major decisions. Lawrence Wrightsman (2006, p. 232), drawing on the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, summarizes four factors justices may consider when deciding whether to overturn precedent:

• The workability of the [existing] rule
• The extent to which the public has relied on the rule
• Relevant changes in legal doctrine
• Changes in the facts or perceptions of the facts

Interface of Psychological Science and the Supreme Court

The U.S. Supreme Court is relevant in at least two significant ways to the study of psychology and law. First, research on human behavioral processes may be relevant to deciding a case. Second, a substantial body of empirical studies on psychological and other factors appearing to play a role in Supreme Court justices’ decisions is rapidly accumulating.

Recent Cases involving Studies of Human Behavior

Cases being debated in the U.S. Supreme Court may involve issues of human behavior. For example, in deciding whether a governmental practice is, “cruel and unusual” or demonstrative of a “compelling” state interest, some justices on the Court may wish to consult evidence from the social sciences. Accordingly, professional organizations may submit amicus briefs attempting to guide the Court on matters of human behavior. A systematic listing of amicus briefs filed by the American Psychological Association is available on its Web site (listed at the end of this entry). Historically, probably the best known citation of social science research in a U.S. Supreme Court opinion is that in Brown v. Board of Education (1954, footnote 11). A sampling of contemporary Supreme Court cases raising behavioral science issues are summarized as follows, for illustrative purposes:

In Roper v. Simmons (2005), the Court had to decide whether it was constitutional to impose the death penalty on individuals who committed their crimes while younger than 18. The case, therefore, raised questions of adolescents’ cognitive and emotional maturity. In disallowing such executions, the majority opinion cited research from developmental psychology, noting, among other findings, that compared with older individuals, adolescents are more “impetuous” or impulsive. They are also more susceptible to peer pressure and would likely be less able to get themselves out of situations where violence could take place.

Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), companion cases on whether the University of Michigan’s admissions policies for its undergraduate and law school programs, respectively, could constitutionally use race as a factor, hinged in part on the University’s claim that attending an institution with a diverse student body tended to confer academic and social benefits on majority and minority students. Such a finding would appear to strengthen the argument for a university having a compelling state interest in providing a diverse student body and, potentially, for particular methods used to achieve this objective. Indeed, Justice O’Connor’s majority opinion in Grutter noted that “the Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity.”

Supreme Court justices vary widely in their receptivity to psychological and other social scientific evidence. In some of the above cases, such evidence appears to have played a substantial role in the Court’s decision making (or, at least, was cited in the majority opinion). In contrast, other justices appear to take a much more negative view. Wrightsman (2006) quotes Justice Antonin Scalia as alluding to “those of us who have made a career of reading the disciples of Black-stone rather than of Freud” (p. 103). Wrightsman also adds that “this was not the only time that Justice Scalia has gratuitously attacked psychology.”

Related to the introduction of scientific information into court cases, another important role of the U.S. Supreme Court has been to interpret the Federal Rules of Evidence as far as standards for the admissibility of scientific evidence (social, as well as physical, science) and technical knowledge into federal trials. Leading cases in this area from recent years include Kumho Tire Company v. Carmichael (1999) and Daubert v. Merrell Dow Pharmaceuticals (1993).

Research on the Psychology of Supreme Court Decision Making

The cognitive and interpersonal processes that go into the justices’ own decision making have been active research topics in their own right. As summarized by Wrightsman (2006), areas of inquiry include pressures toward group conformity (that there appear to be more unanimous decisions, and fewer 8:1 decisions, than would be expected, suggests that such pressures are operative); whether the justices’ ultimate votes can be predicted from an analysis of their questioning during oral arguments; and content analysis of justices’ written opinions to assess the cognitive complexity exhibited in the opinions and see if situational factors (e.g., being in the majority or dissent) affect levels of complexity. One of the major scholarly projects on Supreme Court decision making in recent years, Washington University’s Supreme Court Forecasting Project, has an extensive database online. Guiding such empirical studies are conceptual models known as the legal model, the attitudinal model, and the rational choice model.

References:

1. Baker v. Carr, 369 U.S. 186 (1962).
2. Bowers v. Hardwick, 478 U.S. 186 (1986).
3. Breyer, S. (2005). Active liberty: Interpreting our democratic constitution. New York: Knopf.
4. Brown v. Board of Education, 347 U.S. 483 (1954).
5. Caplan, L. (1987). The tenth justice: The Solicitor General and the rule of law. New York: Knopf.
6. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
7. Gratz v. Bollinger, 539 U.S. 244 (2003).
8. Grutter v. Bollinger, 539 U.S. 306 (2003).
9. Krause, H. D., & Meyer, D. D. (2003). Family Law in a Nutshell (4th ed.). St. Paul, MN: Thomson/West.
10. Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999).
11. Lawrence v. Texas, 539 U.S. 558 (2003).
12. Lazarus, E. (1998). Closed chambers: The first eyewitness account of the epic struggles inside the Supreme Court. New York: Times Books.
13. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
14. Roper v. Simmons, 543 U.S. 551 (2005).
15. Schlup v. Delo, 513 U.S. 298 (1995).
16. Stohr, G. (2004). A black and white case: How affirmative action survived its greatest legal challenge. Princeton, NJ: Bloomberg Press.
17. United States v. Virginia, 518 U.S. 515 (1996).
18. Wrightsman, L. S. (2006). The psychology of the Supreme Court. New York: Oxford University Press.

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