Info Brief: How the Federal Judiciary Works

Learn how the federal judiciary works today.

Remember that Article III creates the Supreme Court as the head of the federal judiciary, but gives Congress the authority to establish other courts within the federal judicial system. In other words, Congress controls the details of the national court system and even the shape of the Supreme Court’s docket.

So, what does the federal judiciary look like today? To answer that question, let’s look at how a case can move up the federal court system. After all, it’s a good way of learning the three types of courts in the federal judiciary.

The Federal Judiciary: An Overview

So, here’s how nearly every case works its way up the national court system. In nearly every case, someone brings a new case in (what’s called) a district court. This is the lowest level of court in the national court system.

There are 94 district courts in the United States. It’s where nearly every case starts—and where most of them end! A single judge presides over (or manages) the case. And the case is decided by either a judge or a jury.

Someone wins, and someone loses. The loser might decide to appeal the district court’s ruling by having the next level of court (the court of appeals) take a look at the case.

There are 13 Circuit Courts of Appeals (twelve geographic circuits, and the Federal Circuit). The court of appeals doesn’t control which cases it hears. If someone appeals her case to this court, the judges have to decide it.

Generally speaking, they have two options: (1) say that the district court got it right; or (2) say that the district court got it wrong—and then explain why and reach a new decision. Again, someone wins, and someone loses. And it doesn’t have to be the same people as the first time!

Finally, the loser in the court of appeals might try to get the Supreme Court to decide her case. But remember, the Supreme Court—unlike circuit or district courts—has the power to decide what cases it wants to hear.

So how does the Supreme Court decide which cases to hear?

How Does a Case Get to the Supreme Court?

After someone loses their case at the U.S. Court of Appeals, she may try to ask the Supreme Court to take another look at it. So, she writes a request for the Supreme Court to rule on the constitutional question in the case. The fancy (lawyerly) words for this is that they can “petition for a writ of certiorari.” (Or even if you want to sound like a real insider: “file for cert.”)

Most constitutional cases start with a simple argument: The government has violated the Constitution. It may be a law passed by Congress, by a state legislature, or by a town council. Or it may be an action taken by the President or the Governor or some other government official—whether it’s an arrest, a new government regulation, or whatever—you name it. But someone—often a single ordinary American—comes to court and argues that a law or arrest or regulation violates the Constitution. Constitutional cases often begin with “We the People.” (Or even “Me the individual.”)

The Supreme Court receives about 10,000 petitions a year. When all is said and done, the Supreme Court will hear about 65-70 cases a year.

That’s a huge gap! This tells us that most petitions are denied. Why? It’s not the Supreme Court’s job to hear every case. Article III tells us that only certain cases can be heard there. And the Justices are busy, so they try to spend their time only on the most important and unsettled constitutional questions.

So, how do the Justices narrow down the petitions to their actual cases?

The Justices use the “Rule of Four” to decide if they will take the case. If four of the nine Justices feel that the case has merit, they will issue a writ of certiorari. This is a legal order from the high court for the lower court to send the records of the case to them for review.

Again, this is the “The Rule of Four.” So, that’s four out of nine Justices—so, just short of a majority. If you want to sound like a real insider: When the Court takes a case, we generally call that “granting cert.” But again, the Supreme Court rejects nearly every petition.

So, what types of cases are the Justices most likely to want to hear?

Generally speaking, the Court will sometimes take cases that involve questions of national and constitutional significance. But the main reason it takes a case is usually a “circuit split.” This is when the lower courts can’t agree on how to interpret the law involved and/or when different lower courts have reached different legal conclusions.

Why does the Supreme Court care about circuit splits?

When the lower courts decide cases differently, it can lead to confusion. By taking a case that involves an issue that has led to differing opinions in the lower courts, the Supreme Court creates a precedent that every court in the country has to follow. This ensures that the laws are applied equally to all people, no matter where they live. In other words, by settling circuit splits, the Supreme Court looks to promote the value of legal uniformity throughout the nation.

What Happens After the Supreme Court Takes a Case?

Finally, what happens after the Court takes a case?

The winner and loser from the court of appeals file briefs before the Supreme Court. These are little books that lawyers write—presenting the constitutional arguments on their side of the case.

Others affected by the case can also write briefs—known as “Friend of the Court” or “amicus” briefs—explaining why the Court should choose one side as the winner over the other. These briefs can come from all sorts of people and groups—ordinary Americans, government officials (at the national, state, and local levels), scholars, businesses, various organizations/groups, etc.

The Justices then read the briefs in the case, and the Court eventually holds oral argument. This is when the lawyers on each side get to state their case and the Justices get to ask questions.

The Justices then get together once or twice a week to vote on the cases. This is known as the Justices’ “Conference”—and these conferences are held in secret. No one but the Justices are allowed in the room.

At conference, the Justices discuss the cases heard at oral argument, decide by vote which cases to take, and each justice is allowed to speak to their views on the cases before the Court. The Justices give their votes at conference by seniority, starting with the Chief Justice. If the Chief Justice is in the majority, he/she assigns who writes the majority. The Chief Justice can always assign himself/herself an opinion. This is where a lot of the Chief Justice’s authority lies! And if the Chief Justice is in the minority (the dissent), then the most senior Justice (the Justice serving the longest) in the majority assigns which Justice writes the majority.

The Justices then spend months writing their opinions in the case. In nearly every case, one Justice writes a majority opinion—which has the support of a majority of the Justices. In some cases—often the most closely watched cases—one or more Justices might write a dissenting opinion, explaining why they disagree with the majority and why they would decide the case differently. And finally, one or more Justices might write a concurring opinion—often agreeing with the majority on who should win the case, but offering some additional thoughts on how to think about the constitutional issue in the case.

After the Justices finalize their opinions and finalize their votes in the case, the Court’s decision is then released to the public.

Finally, the Court’s term typically lasts from the first Monday of October to the end of June. The Court sets oral arguments for cases, which usually run through April and occur the first two weeks of each month. Opinions are released throughout the term, with the final opinions (often on the most important and controversial cases) coming at the end of June—although there’s no deadline because the Justices set their own docket (and schedule)!

Remember, all of this is not in the Constitution itself, but the result of over two centuries of Supreme Court practice.

The Supreme Court Nomination Process

So, that’s how a case gets to the Supreme Court—and how the Court decides it. But how does a person end up as a Supreme Court Justice in the first place?

Article II, Section 2, sets out the Appointment Power. The President has the power to nominate someone to fill a Supreme Court seat. And the Senate has the power to confirm or reject the person that the President chooses. (The “Supreme Court nominee.”) To serve on the Supreme Court, a President’s nominee must receive the approval of the Senate.

Here’s Article II’s Text: The President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”

But that’s all that the Constitution’s text says about the Supreme Court nomination process.

The judicial nomination process today—the hearings, the questions, how qualified nominees must be, etc.—don’t come from the Constitution’s text. They’re a product of norms created over time and the actions of Congress.

Generally speaking, here are the steps in that process today:

A seat on the Supreme Court opens up after a Justice retires or dies.
The President considers a number of potential people for the position—reading about them, asking for advice from others (advisors, Members of Congress, scholars, political leaders, interest groups, etc.), interviewing potential choices, etc.
The President selects someone, and that person accepts the nomination.
Next, the Senate Judiciary Committee—the Senate group in charge of the Supreme Court nomination process—holds confirmation hearings. The President’s nominee shows up at the Senate, and the Senators ask their questions. The nominee answers them.
The Committee votes on whether to recommend confirmation to the rest of the Senate. The nomination is then sent to the full Senate.
The full Senate debates the nominee and votes on her confirmation: “yes” or “no.” If she wins Senate approval, she then becomes a Supreme Court Justice. If not, then the whole process starts all over again!

Of course, there are exceptions to this general process, but this is how it usually works today.

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