Construction Literary Magazine

Fall 2020

The Law of the Land

The Law of the Land

Photograph via Flickr by Phil Roeder

I. The Background.

Imagine that you’re driving home from work one day and get pulled over by the police. You weren’t speeding, your taillights work fine, and you have no idea what’s wrong. The policeman orders you out without any explanation, does a full search of the car, and finds that half-smoked Philly blunt packed with marijuana that you and your cousin forgot to finish before Thanksgiving. Busted . . . but what gave the policeman the right to search your car in the first place? Was that legal?

Congress passes a law making it illegal to carry “explosives, guns, or other such weapons in national parks.” While on a camping trip to Yosemite, park rangers arrest you for carrying a crossbow. They say a crossbow counts as “other such weapons” in the statute. But is this what Congress meant in that statutory phrase?

The President proposes a new health care system to help keep Americans healthy and insured. It includes a tax penalty for certain people who don’t have health insurance. Half the states in the country sue, saying that this tax penalty is unconstitutional and that this is an issue best left to the individual states. Does Congress have the power to require individuals to purchase insurance?

Eventually, the United States Supreme Court will decide the outcome to all of these questions.

The Supreme Court is the final arbiter for many of the most important constitutional issues in the country. The nine Justices wield an incredible amount of influence over the lives of individual Americans: they decide when the police can search your car, they fill in ambiguities in statutory phrases, and they determine the validity of countless other rules, regulations, and safeguards that most people take for granted.

And yet, what does the average person know about the Supreme Court? How are the Justices appointed? How does a case even get as far as the Court? In an age where the Tea Party movement has brought a new focus on the Constitution, what does fidelity to the Constitution actually mean? Originalism? Roe v. Wade? How does this system work?

This feature is ultimately intended to provide a very low-key education about the Supreme Court and its famous cases, its underlying doctrines, and the individuals who have shaped (and continue to shape) its history. Whether for cocktail party conversation (little known fact: regaling someone with your command of federal question jurisdiction ranks just behind a discussion about your snuff film collection on the pickup line scale) or general self-edification, we’re here to help.

This introductory post offers a very broad background that sets the stage for upcoming forays into the details of the legal system that, know it or not, like it or not, regulates your life from the moment of your birth until your ungrateful children screw up your estate. So take a moment to read, learn, and question. Let’s find out what the Supreme Court is all about.

II. The System.

Based on its population, each state is divided into one or more “federal districts.” For example, there is only one district in Alaska, whereas California is divided into the Northern, Southern, Eastern, and Central Districts. Each district contains one or more federal district courts, which act as the trial courts for the federal judicial system in their respective jurisdictions.

Federal courts only have jurisdiction over certain types of cases. The most common ways for a case to get into federal court is it involves an alleged violation of a federal law or infringement upon a Constitutional right (“federal questions jurisdiction”) or via so-called “diversity jurisdiction” in which (a) the opposing parties to the case are residents in different states and (b) the plaintiff contends that he or she is owed at least $75,000. Depending on how the case comes to a federal court, the court might have to apply state law in making its decision.

If a party is dissatisfied with any portion of the district court’s ruling, that party can appeal the case to a United States Court of Appeals. The federal appellate system is broken up into thirteen different “circuits.” These include the eleven numbered circuits based on geography (for example, the Third Circuit hears appeals from federal courts in Pennsylvania, Delaware, and New Jersey), the D.C. Circuit (which generally hears cases involving federal administrative agencies and cases arising out of Washington, D.C.), and the Federal Circuit (which has jurisdiction based on subject matter, generally international trade issues, government contracting issues, and patent disputes).

The Supreme Court hears most of its cases via “appellate jurisdiction” over state1 and federal courts. Unlike federal circuit courts, there’s no automatic right to get a case heard by the Supreme Court. Rather, nearly all cases come before the Court when one of the parties petitions for a “writ of certiorari” (usually referred to as “cert petitions”), which is essentially a fancy and utterly unpronounceable way of saying that the lower courts screwed something up. The Court only chooses to review a fraction of the cases for which cert is petitioned: generally, it will hear cases that it deems critical to the constitutional system, those that seem egregiously inconsistent with prevailing law, or those in which different circuit courts have come to different results on the same issue of law (so-called “circuit splits”). If the Court decides not to hear a case, it will “deny cert,” and the lower court ruling stands.

In addition, the Supreme Court has what is called “original jurisdiction” over a certain class of cases that are filed directly with the Supreme Court. Established in the Constitution, these cases include those affecting ambassadors, consuls, foreign ministers, and ones in which an actual state is a party. They usually involve one state suing another over border issues, or something similarly enthralling, and are comparatively infrequent, given that Riggs and Murtaugh set the stage for what happens to ambassadors, consuls, and other foreign ministers who try to run drug rings in Los Angeles in Lethal Weapon 2: they go down.

III. The Players.

Since 1869, there have been nine Supreme Court Justices at a time. The Justices serve for life and so stick around until they retire or die. Ostensibly, this is to shield them from the vagaries of the political process and to avoid situations such as the recent unpleasantness in Iowa, where the state Supreme Court overturned the Iowa gay marriage ban and the Justices were promptly voted out of office. Most presidents nominate candidates who nominally share their ideological views, although every now and then someone turns out to be a surprise (think John F. Kennedy nominating the ultimately-conservative Byron White or George H.W. Bush nominating the ultimately-liberal David Souter).

The President appoints justices “by and with the advice and consent of the Senate,” which means that the Senate has to confirm any nomination by a majority vote. There’s a lot of political posturing that goes on at judicial nomination hearings, which can get pretty absurd: basically, envision one of the Senate’s various eminently coiffed former oil barons lecturing brilliant jurists about the nuances of the Constitution. Eventually, though, the majority of nominees do end up on the Court.2

There are eight “Associate” Justices and one “Chief” Justice. The role of the Chief Justice is largely administrative (presiding over meetings, acting as the public spokesperson for the Court, etc.), but the position has one extremely powerful perk: the Chief gets to decide who writes the opinion for whatever side of the case he is on. For example, if the Chief is in the majority, he picks the author of the majority opinion. The most senior Justice (seniority being determined by time spent on the Court) will choose who writes the opinion for the other side. As a result, if the Chief is having trouble getting the five votes he needs for a majority opinion, he can dangle the carrot of opinion authorship to attract a Justice who might not otherwise vote in their favor.

Each Justice is allowed to hire up to four law clerks (the Chief being allowed to hire five), who aid the Justices by doing legal research, helping them prepare for cases, and, in many instances, actually writing the first draft of opinions, or at least portions of it. This is generally seen as one of the most, if not the most, prestigious jobs in the legal world, with many major law firms offering post-Supreme Court clerkship bonuses of up to $250,000. Most Supreme Court clerks are the top graduates from the top law schools in the country, and virtually all have clerked for a lower court federal judge beforehand.

IV. The Process.

When the Court grants a cert petition, the case is then scheduled for an oral argument, which takes place in special sessions between October and April. If the parties and the Court agree, amici curiae (more fancy terminology literally meaning “friends of the court”) may also file briefs on behalf of any party that they support. Litigants are strategic about soliciting amicus briefs: for example, if an extremely liberal group is participating in a government contracting case, it might solicit an amicus from a conservative organization, such as the U.S. Chamber of Commerce, that represents organizations in similar circumstances.

During the actual oral argument, each side is given thirty minutes to make its case.  Justices are free to interrupt with questions for the attorneys or general comments and often do so to varying extents: Justice Scalia is known for his frequent, humorous exchanges, whereas Justice Thomas has not asked a single question during oral argument in many years (leading some to openly question if he’s even paying attention).

Arguing in front of the Supreme Court, as well as preparing the briefs that support an oral argument, is considered one of the most difficult and experience-driven positions within the legal community. Attorneys who regularly brief or argue in front of the Supreme Court often work for large law firms in Washington, D.C., and are regularly hired by outside clients specifically to take over a case once it reaches the Supreme Court. It’s a lucrative position: members of this so-called “Supreme Court Bar” often bill their clients at rates well over $1,000 an hour. These attorneys are expected to know the best ways to persuade each particular Justice, to make the most compelling reason for the Court to grant cert in a case, and to even be familiar with such mundane details as to how certain Justices like legal briefs to be punctuated.

Oral arguments are held between October and April. The Justices will then conference and decide the cases, with actual written opinions released sometime around May and June. If the lower decision is upheld, that’s that: it’s considered a good law, and the parties move forward under the lower court’s guidance. If not, the Justices might overturn the lower decision altogether, vacate a portion of the decision but uphold other parts, or decide that one of the parties did not even have the legal grounds on which to participate in the action. Once the Court has made its decision, it is binding: in certain cases, Congress may legislatively “overturn” a Supreme Court decision, so long as it doesn’t involve a Constitutional interpretation that’s beyond Congress’s power to begin with. But generally, the Supreme Court is the final say in the dispute: it determines the law of the land.

So there’s the barebones introduction: in future posts, we’ll discuss various legal philosophies such originalism, the living Constitution, crippling alcoholism (just seeing if you’re paying attention), the history and the behind-the-scenes details of famous cases, profiles of particular Justices, and more. If you have a particular interest in a specific subject, let us know, and we’ll be sure to tackle it. Remember, it’s your country: the Supreme Court is just interpreting the document that governs our legal system.


1 The Supreme Court also has jurisdiction over appeals from State Supreme Court decision that involve questions of federal law. In such instances, the Court only reviews the state court’s interpretation of the applicable federal Constitutional provision, statute, treaty, etc. It does not review any matters of purely state law, which are under the exclusive jurisdiction of state courts.

2 The most notable nominee to get dinged in recent years was Robert Bork in 1987. Bork, a hardcore conservative nominated by Reagan, fell victim primarily due to a Ted Kennedy speech entitled “Robert Bork’s America,” in which Kennedy accused Bork’s vision of America of something resembling the Deep South in 1832, except if the government was run by a combination of Big Brother and the Inquisition.