The dissenting opinion is written by the justices who are in the minority.

Technology and Hands on Internet Legal Research

I wanted to give you a hands on assignment that will not take up too much time but will help you in the future when you want to find cases on issues decided by the Supreme Court.

Go to:

Go to
http://www.oyez.org

This a great site to find cases of the United States Supreme Court. You can access this site for free. Anytime you hear of a Supreme Court case in the news, you can check it out here.

Scroll down and see the various terms of the Court.

Here is an outline on how the United States Supreme Court does its work and how it decides which cases to hear. After the outline you will see directions on what is to be posted on the Forum.

You will also see a link to a presentation of Justice Breyer of the US Supreme Court. Justice where he explains how the Court dies its work and how he individually does his job.

How The Supreme Court Does Its Work

There are nine justices on the United States Supreme Court-the Chief Justice and eight associate justices. Each justice gets one vote. The number of justices is fixed by Congress. The Chief Justice is considered the senior justice and sets the agenda for the Court. The justice with the most seniority is the Senior Associate Justice. The justices serve for life and can only be removed by impeachment by the House and removal by the Senate. Notice the workings of checks and balances and separation of powers. The President nominates his choice but the Senate must approve; the Supreme Court can check the President and Congress with judicial review; the President cannot remove a justice and Congress can only remove a justice by impeachment by the House and removal by the Senate. The Supreme Court remains an independent co-equal branch, as neither the President nor the Congress can remove the justices when the Court hands down decisions when those decisions disapprove their actions. As powerful as the Supreme Court is, it can do nothing unless a case is brought to it by parties who are involved in an actual controversy. Article III mandates this case or controversy requirement. [Case or controversy requirement- the concept that the courts under Article III can only decide cases where there is an actual dispute between people in a lawsuit and not decide issues in the abstract]
These cases must wind their way up from the lower courts before the Supreme Court can rule. Approximately 7000 cases a year try to get to the Supreme Court but the Court publishes formal opinions in only about 80 cases. The odds of the Supreme Court deciding a particular case are quite small. Let’s see how the Court selects its cases and how it goes about deciding the cases that it selects.
/Selection of Cases
In order for a case to be eligible for review by the Supreme Court, a party who desires review must file a petition for a writ of certiorari. [Petition for a writ of certiorari- the document that starts the process by which the Supreme Court reviews and accepts its cases]
These petitions for writs of certiorari accumulate at the Court throughout the year and they represent about 7000 cases that try to get to the Court each year. The justices must review these petitions and decide which ones will be accepted for review and decision. The justices are assisted in their work by staff attorneys known as law clerks. The law clerks read the petitions and make recommendations in writing to the justices as to which cases should be accepted. The justices hold a conference to decide which cases they will hear. When justices are in conference no one except the justices are present. If four justices agree that a particular case should be heard, (known as the rule of four) that case is accepted for review. This means that the Court has accepted the petition of certiorari- or has “granted cert.” The factors that the Court considers in deciding which cases to accept include:
– Cases of national significance such as abortion, civil rights:
– Cases where the issues involve the role of the President and Congress:
– Cases where the Circuit Courts have split- that is, the Circuits have reached different results on the same issue. For example, the Fifth Circuit ruled that there is no cause of action for same-sex sexual harassment while the Ninth Circuit ruled the opposite. The Supreme Court granted cert. on this issue and decided that the law does allow a claim for same sex sexual harassment, Oncale v. Sundown Offshore Services, 523 U.S. 75 (1998).
– Cases where the Supreme Courts of the States are in disagreement, regarding federal law.
The Process of Deciding Cases
After the case is selected for review, the attorneys for both sides will be notified. The party that has filed the petition is referred to as the petitioner while the opposing side is called the respondent. The attorneys for both sides will file a legal brief and the case will be scheduled for oral argument. [legal brief –a document that sets out the reasons why the Court should rule in their favor] [oral argument- a hearing before all nine justices where the lawyers present their case and respond to questions from the Court] After oral argument which lasts one hour, the justices go into conference, discuss the case and take a vote on how they will rule in the case. The Chief Justice assigns the writing of the opinion if the Chief is in the majority. Five justices are needed to form a majority. If the Chief is not in the majority, the Senior Associate Justice assigns the opinion. The Chief and the Senior Associate Justice can assign the opinion to themselves or to another justice. The justice assigned to write the opinion reviews the facts of the case, considers the oral arguments and does legal research, assisted by law clerks. The justice will circulate drafts of the opinion and ask the other justices to join. There is no time limit on this process, which often takes months. When the opinion is finished it is announced from the Supreme Court bench and then published for public access. The opinion can have several forms.
Majority Opinion
Dissenting Opinion
Concurring Opinion
Plurality Opinion

A majority opinion is formed when at least five justices agree with the result and the reasoning upon which the result is based. [Majority opinion- an opinion in which at least five justices agree on the result and the reasoning] A majority opinion sets a precedent. A precedent is a rule of law that is established by a case and which must be followed in later similar cases. Precedent forms the basis of the system of law followed in the United States, stare decisis. Stare decisis is Latin and translates into “let the decision stand or abide by the decision.” Under stare decisis, once the Supreme Court establishes a precedent by issuing a majority opinion, all Courts are bound to follow this precedent in all future cases that present similar facts. By requiring similar cases to be decided in the same way, stare decisis adds stability and predictability to the legal system. [Precedent- a rule of law that is established by a case that is followed by later similar cases] [Stare decisis- the system that is based on precedent and which requires courts to follow established principles in similar cases.
The justices who are in the minority can write a dissenting opinion. [Dissenting opinion-an opinion written by a justice who disagrees with the majority on the result of the case] The dissenting opinion is written by the justices who are in the minority. A justice who writes a dissenting opinion gives his view on how the majority should have ruled.
A justice can write a concurring opinion which agrees with the result reached in the case but disagrees on the reasoning.[concurring opinion- an opinion that agrees with the majority on the result of the case but disagrees on the reasoning] When no single reasoning commands a majority of the Court, the result is a plurality opinion. [plurality opinion- an opinion who’s reasoning does not command a majority of the Court. A plurality opinion decides the case but does not set a precedent.
See exhibit 4-4 for a summary of the selection and deciding process.
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Exhibit 4-4 THE PROCESS OF SELECTION AND DECIDING CASES

Majority Dissent Concurring Plurality

Opinion is published

Opinion is announced from Supreme Court bench

Draft opinion, Circulated among justices

Assignment of opinion

Justices hold a conference and vote on case

Oral arguments held

Attorneys file legal briefs

Four votes necessary to accept a case (Rule of Four)

Justices hold a conference and select cases

Law clerks make recommendations on which cases to accept

Petition for a writ of certiorari is filed with U.S. Supreme Court

U.S. Court of Appeals State Supreme Court

U.S. District Court OR State Trial Court
A case or controversy is filed and it is justiciable.
The case has standing.
The case is ripe and not moot.
The case is not a political question, nor does it require any advisory opinion
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You should be on the site
Go to

Note all the information that is available. The case, the date of oral argument, issues and the case in the lower court and the decision. You can click on the case to read it or get a summary of the case.

PART 1 FOR THE DISCUSSION BOARD

CLICK Cases and any TERM PICK ANY CASE.

Give the name of the case

and a brief statement on how the Supreme Court decided the issue.

PICK ANY case you want and pick one that is of interest to you.

Post this information in the discussion board.

PART 2 FOR THE DISCUSSION BOARD
Go to

View this video of Justice Breyer of the US Supreme Court.

Take note as the Justice explains how the Supreme Court does its work. Note how his explanations coincide with Exhibit 4.4 above.

writ of certiorari
rule of four
law clerks
oral arguments
Briefs
Justices in Conference
Assigning of opinions
Writing and circulating opinions

Then post your impressions on Justices Breyer’s presentation and state 2 or 3 things you learned.

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