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Dobbs v. jackson women's health organization (2022).

Dobbs v. Jackson Women’s Health Organization is the 2022 Supreme Court case that reversed Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey , the decisions that originally asserted the  fundamental right to an abortion prior to the viability of the fetus. Dobbs v. Jackson states that the Constitution does not confer a right to abortion; and, the authority to regulate abortion is “returned to the people and their elected representatives.” Full text of Dobbs v. Jackson Women's Health Organization (2022)

The case involved Mississippi’s Gestational Age Act , passed in 2018, which prohibited abortions after 15 weeks except for medical emergencies or severe fetal abnormalities. The act also applied penalties such as license suspension to abortion providers.  Consequently, Jackson Women’s Health organization filed suit in a federal district court and challenged the constitutionality of the Gestational Age Act. Thomas Dobbs (the petitioner) was a Mississippi State Health officer. Dobbs filed a petition for certiorari , which was granted. The Supreme Court granted writ to address whether all pre-viability prohibitions on elective abortions are unconstitutional. 

Arguments :

Mississippi, through Dobbs, argued that the Constitution does not provide a right to abortion (and as such, states can freely ban abortions if it is rationally related to legitimate government interests ). Mississippi leaned on the text of the Tenth Amendment , that denies states powers like making treaties , but does not directly deny the power to restrict abortion. Additionally, Mississippi argued that “ liberty ” as written in the Fourteenth Amendment only implicates fundamental rights that are “ deeply rooted in U.S history and tradition .” Mississippi further argued that abortion is not a fundamental right here since many states at the time of the Fourteenth Amendment’s ratification had bans on abortions. Additionally, Mississippi contended that the “viability line” prevented a state from protecting its interest and was too arbitrary or subjective.  

In contrast, Jackson’s Women’s Health Organization (“Women’s Health”) argued that abortion is grounded in the Fourteenth Amendment. It asserted that physical autonomy and body integrity are “essential elements of liberty protected by the Due Process Clause .” For example, contraception is included in the word “liberty.” Women’s Health also argued that abortion, or the right of a person to have possession of their own body is important in the common law tradition. Furthermore, Women’s Health pointed out that federal courts have uniformly applied the viability line. 

Justice Alito wrote the majority opinion, joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. The Court explained that the critical question was whether the Constitution “properly understood” confers a right to obtain an abortion.  The Court first stated that the Constitution makes no express references to abortion. Further, Court precedent holds that a state regulation of abortion is not a sex-based classification (and so is not subject to heightened scrutiny). 

From there, the Court then established that abortion is not deeply rooted in the Nation’s history and traditions. The Court elaborated that the Due Process Clause protects only two types of substantive rights , rights guaranteed by the first eight Amendments, and rights that are deemed fundamental. As such, The Court noted that the history of abortion in the U.S is “as a crime ”-- that at the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. The Court explained that this was true until Roe v. Wade —and thus, “liberty” would not recognize abortion as a fundamental right rooted in the nature, history, or traditions of the nation. Indeed, the Court stated that “ Roe either ignored or misstated this history.” 

The Court also explained that “the people of various states” may evaluate the interests between “potential life” and a “woman who wants an abortion” differently than the Court. Finally, the Court concluded that abortion is not part of a broader entrenched right—that justifying this premise “proves too much.” The Court said that linking abortion to a right to autonomy or to “define one’s concept of existence” would also license fundamental rights to “illicit drug use, [or] prostitution.” 

Implications :

Now that abortion is not awarded the status of a fundamental right , rational-basis review is the standard used when looking at state abortion regulations that undergo a constitutional challenge. Essentially, States may regulate abortion “for legitimate reasons” and if those laws are challenged under the Constitution, they are entitled to “a strong presumption of validity.” 

[Last updated in June of 2022 by the Wex Definitions Team ]

A Revealing Experiment

Brown v. board and "the doll test", doctors kenneth and mamie clark and "the doll test".

In the 1940s, psychologists Kenneth and Mamie Clark designed and conducted a series of experiments known colloquially as “the doll tests” to study the psychological effects of segregation on African-American children. Drs. Clark used four dolls, identical except for color, to test children’s racial perceptions. Their subjects, children between the ages of three to seven, were asked to identify both the race of the dolls and which color doll they prefer. A majority of the children preferred the white doll and assigned positive characteristics to it. The Clarks concluded that “prejudice, discrimination, and segregation” created a feeling of inferiority among African-American children and damaged their self-esteem. 

The doll test was only one part of Dr. Clark’s testimony in Brown vs. Board – it did not constitute the largest portion of his analysis and expert report. His conclusions during his testimony were based on a comprehensive analysis of the most cutting-edge psychology scholarship of the period.

A "Disturbing" Result

In an interview on the award-winning PBS documentary of the Civil Rights movement, “Eyes on the Prize,” Dr. Kenneth Clark recalled: “The Dolls Test was an attempt on the part of my wife and me to study the development of the sense of self-esteem in children. We worked with Negro children—I’ll call black children—to see the extent to which their color, their sense of their own race and status, influenced their judgment about themselves, self-esteem. We’ve now—this research, by the way, was done long before we had any notion that the NAACP or that the public officials would be concerned with our results. In fact, we did the study fourteen years before Brown , and the lawyers of the NAACP learned about it and came and asked us if we thought it was relevant to what they were planning to do in terms of the Brown decision  cases. And we told them it was up to them to make that decision and we did not do it for litigation. We did it to communicate to our colleagues in psychology the influence of race and color and status on the self-esteem of children.”

In a particularly memorable episode, while Dr. Clark was conducting experiments in rural Arkansas, he asked a black child which doll was most like him. The child responded by smiling and pointing to the brown doll: “That’s a nigger. I’m a nigger.” Dr. Clark described this experience “as disturbing, or more disturbing, than the children in Massachusetts who would refuse to answer the question or who would cry and run out of the room.”

"The Doll Test" in Brown v. Board of Education

The Brown team relied on the testimonies and research of social scientists throughout their legal strategy. Robert Carter, in particular, spearheaded this effort and worked to enlist the support of sociologists and psychologists who would be willing to provide expert social science testimony that dovetailed with the conclusions of “the doll tests.” Dr. Kenneth Clark provided testimony in the Briggs, Davis , and Delaware cases and co-authored a summary of the social science testimony delivered during the trials that were endorsed by 35 leading social scientists.

The Supreme Court cited Clark’s 1950 paper in its Brown decision and acknowledged it implicitly in the following passage: “To separate [African-American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Dr. Kenneth Clark was dismayed that the court failed to cite two other conclusions he had reached: that racism was an inherently American institution and that school segregation inhibited the development of white children, too.

An "Incorrigible Integrationist"

Although Dr. Kenneth Clark is most famous for the “Doll Tests,” his personal achievements are equally as prestigious. He was the first African American to earn a PhD in psychology at Columbia; to hold a permanent professorship at the City College of New York; to join the New York State Board of Regents; and to serve as president of the American Psychological Association. His wife Mamie Clark was the first African-American woman and the second African-American, after Kenneth Clark, to receive a doctorate in psychology at Columbia.

In 1946, the Clarks founded the Northside Center for Child Development in Harlem, where they conducted experiments on racial biases in education. During the ’50s and ’60s, the Clarks focused on New York City schools.  Dr. Kenneth Clark was a noted authority on integration, and in particular, he and his wife were closely involved in the integration efforts of New York City and New York State. Dr. Kenneth Clark said of Harlem that “children not only feel inferior but are inferior in academic achievement.” He headed a Board of Education commission to ensure that the city’s schools would be integrated and to advocate for smaller classes, a more rigorous curriculum, and better facilities for the poorest schools.

The Clarks also created Harlem Youth Opportunities Unlimited, or Haryou, in 1962 which was endorsed by then-Attorney General Robert F. Kennedy and President Lyndon B. Johnson, whose administration earmarked $110 million to finance the program. Haryou recruited educational experts to better structure Harlem schools, provide resources and personnel for preschool programs and after-school remedial education, and reduce unemployment among blacks who had dropped out of school. Dr. Clark was a staunch advocate of the total integration of American society — his peers described him as an “incorrigible integrationist.”

Brown v. Board of Education

The case that changed america.

Learn more about the history of the landmark case, key players, and how Brown vs. Board shaped our nation.

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The supreme court decision making process.

• Timothy R. Johnson Timothy R. Johnson Distinguished Teaching Professor, Political Science and Law, University of Minnesota
• https://doi.org/10.1093/acrefore/9780190228637.013.98
• Published online: 22 November 2016

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. Understanding this process will allow scholars, students of the Court, and Court watchers alike to gain a better understanding of the way in which the justices conduct their business and to come to terms with some of the most important legal and political decisions in our nation’s history. Combining a theoretical account of Supreme Court decision-making with an examination of its internal decision-making process illuminates this opaque institution.

• Supreme Court
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• law and politics

Introduction

The U.S. Supreme Court is but one of three political institutions within the structure of the U.S. federal government. Within this system of separated powers it rules on the constitutionality of some of the nation’s most important legal and political issues. 1 Since the turn of the 21st century alone, the Court has made decisions that affected the outcome of a presidential election ( Bush v. Gore ), universal health care ( National Federation of Independent Business v. Sebelius ), the liberty of same sex couples ( Lawrence v. Texas and Obergefell v. Hodges ), and the voting rights of minorities ( Shelby County v. Holder ). In making such decisions, the nation’s highest court may be considered the most powerful of the three branches of the U.S. federal government. 2

This may be a controversial position given the powers held by the elected branches at the federal level. Indeed, Congress has clear and important powers explicated in Article I of the Constitution. As such, among other powers, it declares war, decides how to raise and spend money, and ratifies all international treaties. At the same time, the president is the nation’s chief executive and commander in chief of the military. In short, while the U.S. Supreme Court hears and decides only about 75 cases per term, Congress and the executive branch wield their powers on a daily basis. However, given the issues on which the Court sets legal policy, it is not a stretch to suggest that the justices do indeed wield a great deal of power.

Beyond the debate about the power of each branch, the two elected branches often carry out their jobs in the public eye. Indeed, the president is the most visible political figure in the nation, and the work of Congress is covered (at a minimum) on a regular basis by the mass media. In fact, three cable television channels and a radio network (C-SPAN, C-SPAN2, C-SPAN3, and C-SPAN Radio) devote themselves to allowing the public to watch floor debates and votes as well as virtually all committee proceedings. In short, the elected branches enjoy clear power that is often conducted transparently on a daily basis.

In contrast, with the exception of one hour set aside for litigants to present oral arguments in most cases it decides, and the public announcement of its decisions, the work of the U.S. Supreme Court is conducted almost completely outside of the public’s eye. 3 As a result, the Court’s decision-making process is largely opaque, and therefore the public knows very little about how the justices reach the decisions that affect every part and every citizen of the United States. An attempt is made to illuminate this process so that scholars, students of the Court, and Court watchers alike can gain a better understanding of the way in which the justices conduct their business and come to terms with some of the most important legal and political decisions in our nation. The conventional theoretical account of Supreme Court decision-making is briefly overviewed and the Court’s internal decision-making process from agenda setting to opinion writing is examined.

The Strategic Model of Decision Making 4

Supreme Court justices are policy-oriented strategic decision makers (Epstein & Knight, 1998 ; Eskridge, 1991a , 1991b ; Ferejohn & Weingast, 1992 ; Gely & Spiller, 1990 ), which means their decisions are constrained by a host of factors (Maltzman, Spriggs, & Wahlbeck, 2000 ; Epstein & Knight, 1998 ; Johnson, 2004 ; Black & Owens, 2012 ; Black, Wedeking, & Johnson, 2012 ). That is, when making decisions, they must account for the preferences of their immediate colleagues, the preferences of actors beyond the Court, and institutional norms and rules that might affect the decisions that they can make. The three prongs of this model are considered.

Justices Are Goal-Oriented

An abundance of evidence exists to suggest that Supreme Court justices have many different goals (see, e.g., Levi, 1949 ; Cushman, 1929 ; Baum, 1997 ; Hensley, Smith, & Baugh, 1997 ; Epstein & Knight, 1998 ). For example, it has been well documented that some justices seek principled decisions, or decisions that will sustain the Court’s legitimacy (see Baum, 1997 ). While justices may have many goals, conventional wisdom in the study of judicial politics suggests that the main goal of most Supreme Court justices is the attainment of policy in line with their personal preferences (Segal & Spaeth, 2002 ; Maltzman, Spriggs, & Wahlbeck, 2000 ). As Epstein and Knight ( 1998 , p. 8) point out, “[J]ustices, first and foremost, wish to see their policy preferences etched into law.”

That policy is the main goal of Supreme Court justices is neither a new nor a controversial idea. Rather, this argument is well grounded in the work of legal realists such as Llewellyn ( 1931 ) and Frank ( 1949 ), and early judicial behavior scholars such as Pritchett ( 1948 ), Murphy ( 1964 ), and Schubert ( 1965 ) and Segal and Spaeth ( 2002 ). Scholars have provided empirical support for this argument in several ways. First, individual justices’ voting patterns are very consistent over time. For instance, with the exception of two terms ( 1974 and 1977 ) Lewis Powell voted liberally in civil liberties cases no more than 43% of the time in any given term. Likewise, William Brennan’s liberal support for civil liberties fell below 70% only one term during his Court tenure ( 1969 ) (Epstein, Segal, Spaeth, & Walker, 2011 , p. 456). This consistency indicates justices pursue specific policy goals, and rarely waver from doing so.

Beyond voting patterns, Johnson ( 2004 ) indicates that the vast majority of questions justices ask during oral arguments concern policy. After these proceedings, Epstein and Knight ( 1998 , pp. 30–32) demonstrate almost 50% of all remarks made by justices during the Court’s conference discussions concern policy and 65% of statements in circulating memoranda during the opinion-writing process address policy considerations. These remarks include statements about legal principles the Court should adopt, courses of action the Court should take, or a justice’s beliefs about the content of public policy. Finally, scholars address the interactions that take place between justices during the opinion-writing process (Maltzman, Spriggs, & Wahlbeck, 2000 ; Epstein & Knight, 1998 ; Murphy, 1964 ). They point to justices’ bargaining statements during the opinion-writing phase of a case to demonstrate that policy considerations are the driving force behind justices’ decisions.

Justices Are Strategic

The attitudinal model of Supreme Court decision-making suggests that justices are unconstrained in their ability to vote for their most preferred policy outcomes because they enjoy life tenure (Segal & Spaeth, 2002 ). In other words, because justices do not face election or retention, and because they usually do not have higher political ambitions, they can vote for their most preferred outcomes without consequence. In contrast, the strategic model suggests that, although they pursue policy goals, justices cannot always make decisions that conform perfectly to their preferences. Rather, because five justices must usually agree on a decision to set precedent justices must pay particular attention to the preferences, and likely actions, of their immediate colleagues. In short, Supreme Court justices alter their behavior in order to achieve their goals within the context of making decisions by majority rule.

A recent, yet rich, literature explores the extent and impact of internal bargaining between justices (see, e.g., Ringsmuth, Bryan, & Johnson, 2013 ; Johnson, Spriggs, & Wahlbeck, 2005 ; Maltzman, Spriggs, & Wahlbeck, 2000 ; Caldeira, Wright, & Zorn, 1999 ; Epstein & Knight, 1998 ). These works are progeny of Murphy ( 1964 ), who argued that justices are rational actors and act as such when deciding cases. The reason for this is obvious, as Murphy notes: “Since he shares decision making authority with eight other judges, the first problem that a policy oriented justice would confront is that of obtaining at least four, and hopefully eight, additional votes for the results he wants and the kinds of opinions he thinks should be written in cases important to his objectives” ( 1964 , p. 37).

While Murphy did not systematically test his theory, others have done so. For example, in an analysis of Justice Brennan’s and Justice Marshall’s private papers, Epstein and Knight ( 1995 ) demonstrate that over 50% of cases in one sample contained one or more bargaining statements between the justices. 5 In a later monograph, Epstein and Knight conclude that, “law, as it is generated by the Supreme Court, is the result of short-term strategic interactions among the justices and between the Court and other branches of government” ( 1998 , p. 18).

Wahlbeck, Spriggs, and Maltzman ( 1998 ) support these findings in their empirical analysis of opinion circulation on the Court. They find that an opinion goes through more drafts as the ideological heterogeneity of a majority coalition increases, as the number of suggestions given to the opinion writer by other justices increases, as the number of threats made to the opinion writer increases, and as the number of times other justices say they are yet unable to join an opinion increases. This suggests to Wahlbeck et al. that, “Opinion authors’ actions are shaped by the interplay of their own policy preferences and the actions of their colleagues” (p. 312).

Wahlbeck and his colleagues also find evidence that the decision to join a majority opinion is a strategic choice as well ( 1998 ). Specifically, they demonstrate that the decision to join is determined by how acceptable a majority opinion is to a specific justice, whether that justice can attain concessions from the opinion writer, and the past relationship between the opinion writer and the justice deciding whether to join. Finally, Maltzman, Spriggs, and Wahlbeck ( 2000 ) provide evidence that how the chief justice assigns opinions, how justices respond to initial opinion drafts, and how coalitions form are all processes grounded in strategic interaction. 6 This means that the process through which the Court makes decisions is a product of interactions and interdependencies between the justices. If, on the other hand, justices simply voted for their most preferred outcomes, there would be no evidence of bargaining and accommodation behind the scenes of the decision-making process.

More recently Black, Schutte, and Johnson ( 2013 ) and Johnson et al. ( 2005 ) demonstrate that justices use the rules of the game in a strategic manner. The former analyze how a justice can use threshold issues to keep the Court from deciding a case far from her preferred outcome. 7 In addition, Johnson and his colleagues find that chief justices (as well as senior associate justices) can and do manipulate the voting rules during the Court’s conference discussions to move a decision closer to their preferred outcomes. Both of these recent works extend and enhance empirically the theoretical concept that justices are strategic political actors.

Justices Account for Institutional Rules

The final tenet of our account suggests that, although justices are goal-oriented and consider their colleagues’ preferences when making decisions, they must also account for the institutional context within which they decide cases (Slotnick, 1978 ; Danelski, 1978 ; Maltzman & Wahlbeck, 1996 ). Institutions are the rules (either formal or informal) that structure interactions between social actors (Knight, 1992 ). In the context of the Court, legal institutions may constrain a justice’s ability to make certain decisions. That is, the “rules of the game” may prevent the justices from always making decisions that equate with their most preferred outcomes. The reason for this is simple: Supreme Court justices comply with institutional rules and norms (like precedent) because the Court must at least have the aura of acting as a legal, nonpolitical, institution (Hoekstra & Johnson, 2003 ; Epstein & Knight, 1998 ; Black & Owens, 2012 ).

For instance, Knight and Epstein ( 1996 ) argue that justices adhere to the norm of respecting precedent. While their findings are far from general (they analyze only 13 cases), the evidence is nonetheless compelling. Indeed, if respect for precedent were not a norm, then Knight and Epstein would not have found evidence that the justices frequently discuss past cases in their private deliberations. That the justices make such references to precedents in private memos suggests that they act as if they, themselves, are constrained to follow these decisions. The question, however, is why do the justices feel constrained by precedent? For Knight and Epstein the answer is simple: “compliance with this norm is necessary to maintain the fundamental legitimacy of the Supreme Court” ( 1996 , p. 1029). In other words, they argue that if the Court frequently ignored its own legal precedents its credibility as a judicial institution might be questioned, and it could potentially lose legitimacy—its main source of power.

Respecting precedent is an informal norm, but the Court must also follow certain formal rules such as those set out in the Constitution. Because the Constitution gives Congress the power to override Supreme Court decisions, the justices must account for the preferences of Congress when deciding where to set policy in a particular area of law (see, e.g., Clark, 2009 ; Ringsmuth & Johnson, 2013 ). Other codified rules are found in Article III of the Constitution; these include the Court’s jurisdiction to hear certain cases, 8 the requirement that a party must have standing ( Flast v. Cohen [ 1968 ]) to be heard in the Supreme Court, and that a case must be justiciable before the Court will consider ruling on it. 9

Four key aspects of the Court’s decision-making process are considered: agenda setting, oral arguments, conference, and opinion writing. Each demonstrates quite clearly that justices on our nation’s highest court are strategic actors.

Agenda-Setting Process in the U.S. Supreme Court

The U.S. Supreme Court is a passive institution and must wait for cases to come to it. In other words, the justices cannot introduce legislation like members of Congress. 10 However, as strategic decision makers, justices can do encourage litigants to submit cases presenting a particular question or issue area (see, e.g., Hausseger & Baum, 1999 ). The process through which cases are placed on the Court’s docket is briefly discussed. Research that focuses on the key rule that governs the Court’s agenda-setting process—the Rule of Four—is presented.

A party who loses in a lower federal court or in a state supreme court (if the case involves a federal question) may appeal to the U.S. Supreme Court. 11 When the appeal, or petition, is submitted, the clerk of the Court provides notice to the respondent (i.e., the winner in the lower court). The respondent has the option to respond, waive right of response, or do nothing at all. Most respondents choose the first option, and therefore both parties file briefed (written) legal arguments as to why the Court should or should not hear the case. 12 These briefs are then distributed to the justices’ chambers for review. Over time there has been a clear increase in the number of petitions submitted to the Court. In fact, there has been a five-fold increase in the number of petitions submitted between 1935 and 2015 . At the same time, while the number of cases granted review increased dramatically through the late 1970s this number has fallen just as precipitously between then and the present day.

Once the parties submit their cert. briefs, the first hurdle to winning review by the Court is making the “discuss list.” This list includes all petitions for review the justices will discuss and formally vote on during their weekly conference meetings. The chief justice creates the first draft of the discuss list. 13 Any associate justice can add a petition to the chief’s list but he or she may not remove a case already on the list. 14 While there are little data on the Court’s agenda-setting (or cert. process) the justices do discuss a large number of possible cases each term. For instance, over eight terms between 1986 and 1993 the Court discussed approximately 800 petitions per term (Black & Boyd, 2013 ).

Conference voting at the cert. stage is, like voting on case outcomes, sequential. The justice who places a case on the discuss list speaks first and usually offers a justification for why a petition should be granted review. From there the nine vote on whether to review the case. They do so in descending order of seniority with the chief justice considered the most senior justice. It takes four votes to grant review and if four votes are not forthcoming the Court denies the cert. petition. In other words, the Court will not hear the case. Ultimately, this means the lower court decision remains the law. That said, such a denial does not mean the justices necessarily agree with the lower court decision. Rather it simply means they could not agree to hear the present case.

The Rule of Four

As noted, it takes four votes for the Court to hear a case. This important institutional rule is unique because it allows a minority of justices to both set the Court’s agenda and to change, rather than simply preserve, the status quo. 15 That is, by granting a hearing and by then issuing a ruling on a case from a lower court, the Supreme Court sets national doctrine by either applying the lower court’s ruling to the entire country or by reversing the ruling of the lower court altogether. This is an important power for two main reasons. First, it acts as a sharp constraint on majority tyranny at the Court’s agenda-setting stage. As Kurland and Hutchinson ( 1983 , p. 645) put it, “The rule of four is a device which a minority of the Court can impose on the majority a question that the majority does not think it appropriate to address.” The potency of this rule is not lost on the justices. As Justice Brennan ( 1973 ) put it, choosing cases is “second to none in importance.” It also clearly worries at least one former justice. As John Paul Stevens ( 1983 , p. 19) pointed out: “Every case that is granted on the basis of four votes is a case that five members of the Court thought should not be granted. For the most significant work of the Court, it is assumed that the collective judgment of its majority is more reliable than the views of the minority.”

The historical record on the Rule of Four is incomplete (Stevens, 1983 ; Revesz & Karlan, 1988 ; O’Brien, 1997 ; Epstein & Knight, 1998 ; Hartnett, 2000 ). We know, however, that its origins come sometime after passage of the Evarts Act of 1891 . This law established the circuit courts of appeals and codified that no right of appeal to the Supreme Court existed. The result was that the justices had much greater discretion over their appellate docket. As Hartnett ( 2000 ) put it, “thus was born the then revolutionary, but now familiar, principle of discretionary review of federal judgments on writ of certiorari.” Although there is evidence justices relied on a minority certiorari rule through the late 1800s and early 1900s, it was not until 1925 that its use became public when Justice Willis Van Devanter appeared before the House Judiciary Committee during its hearings on the Judges’ Bill. 16

Van Devanter’s purpose was to “assure Congress that increased control over its [the Court’s] own docket would not lead to arbitrary dismissal of cases” (Robbins, 2002 , p. 12).

More specifically, to assuage the worry that the Court would reject cases that could be potentially important, Van Devanter explained that:

We always grant petitions when as many as four think that it should be granted and sometimes when as many as three think that way. We proceed upon the theory that, if that number out of nine are impressed with the thought that the case is one that ought to be heard and decided by us, the petition should be granted. ( 2002 , p. 12)

A decade later, Chief Justice Hughes reiterated Justice Van Devanter’s response to the congressional concern that the Court may not take cases important for the law because of the justices’ discretion over their docket. In a speech before the American Law Institute he noted, “we are liberal in the application of our rules and certiorari is always granted if four justices think it should be, and, not infrequently, when three, or even two, justices strongly urge the grant” (Hughes, 1937 , p. 459). The point is that for at least the past 80 years a minority of the justices has controlled the Court’s agenda.

Empirical work on the Rule of Four focuses almost exclusively on how it affects the size of the Court’s docket each term. For instance, Stevens ( 1983 ) argues that the Rule of Four comes into play in about 25% of all cases that make the discuss list. He concludes that many of these cases are probably unimportant, and should therefore be left off of the plenary docket. O’Brien ( 1997 ) obtains similar results in his analysis of Justice Marshall’s docket books for the 1990 term. He finds that 22% of cases decided during this term were granted certiorari with only four votes.

Perry and Carmichael ( 1985 –1986) take the question of case selection a bit further. They test whether the Rule of Four protects “important” cases. By their operationalization this does not happen because most important cases almost always receive at least five votes for certiorari. Perry and Carmichael point out, however, that if the Court is interested in taking “nearly significant” cases it should not abandon its long-lasting rule.

While Perry and Carmichael suggest the Rule of Four protects somewhat important cases, the normative implication of Stevens’s and O’Brien’s findings is that the Court should consider abandoning this rule. For Stevens, the quarter of all cases docketed with fewer than five votes presented an additional and unnecessary burden on him and his colleagues. Indeed, Stevens believes the Court should decide only the most important cases, and therefore the problem of overworked justices could be abated by taking only those cases with a majority vote on certiorari.

Beyond the debate between legal scholars and justices, the Rule of Four has drawn scorn from the mass media as its incompatibility with majority rule has come to light in death penalty cases (Liptak, 2007 ). A prisoner sentenced to death needs the vote of a simple majority, or five justices, to stay or postpone his or her execution, yet the Rule of Four allows a minority of justices to place a prisoner’s appeal on the docket. This sets up the possibility that the Court could simultaneously grant a prisoner’s petition to appeal his or her sentence while refusing to stay the execution that would, in the legal lexicon, “moot” the case if the prisoner was subsequently executed.

Certainly the normative implications of the Rule of Four are interesting, but this line of work fails to address a fundamental question: Why would a minority coalition want to place a case on the docket when five of their colleagues could either vote to dismiss the case as improvidently granted (DIG) at the plenary stage, or simply outvote them at the merits stage? 17 After all, on the surface the Rule of Four is incompatible with the rule that a simple majority of justices can vote to dismiss. As such, a preference cycle could exist whereby a case was continually granted and then dismissed (Riker, 1982 ). Two explanations have been given in the literature for why this does not happen on the Court. Regarding DIGs, Epstein and Knight ( 1998 , p. 120) suggest a norm exists whereby the five justices who voted against certiorari cannot form the five-member coalition to DIG a case. While these scholars point out that this norm can be and has been violated, justices do not often do so. The result is that Rule of Four cases ultimately receive treatment similar to cases granted review with five or more votes.

With respect to the latter point, scholars have offered some answers, albeit not theoretically satisfying ones. For instance, in her analysis of case selection based on Justice Burton’s docket sheets Provine ( 1980 , p. 157) finds, “that the desire to be agreeable and the leadership responsibility felt by chief justices are the primary reasons some justices vote oftener for review in four-vote cases than otherwise.” She therefore concludes that, “The hypothesis that four-vote cases reflect the presence of coalitions seeking review on the merits receives no support in this analysis” (Provine, 1980 , p. 158). This conclusion is based on the fact that the two most frequent members of four-vote certiorari coalitions were Justices Burton and Clark, both of whom were considered “affable and outgoing in their personal relationships” (p. 156). The point for Provine ( 1980 ) is that there seems to be nothing strategic about Rule of Four cases, and that the key explanation for justices joining these minority coalitions comes from a sense of friendship, from wanting to be deferential to their colleagues, or from a desire to lead the Court fairly (for chief justices).

The analysis provided by legal scholars is both theoretically and empirically unsatisfying. As such, several political scientists have attempted to systematically analyze the Rule of Four. In his seminal work on Supreme Court agenda setting, Perry ( 1991 ) argues there are times when justices engage in strategic behavior during the certiorari stage, and the Rule of Four may encourage such behavior. Perry ( 1991 , p. 98) also provides evidence that there are times when a coalition of four will not force a case onto the docket because the justices in that coalition know they will surely lose on the merits strategy known as a defensive denial.

Epstein and Knight ( 1998 ) go a step further than Perry by providing convincing evidence to support the argument that the Rule of Four can be used for strategic purposes. As they point out ( 1998 ), “The Rule of 4 invites forward thinking. Policy oriented justices know that if they are to attain their goals they must take those cases they believe will lead to their preferred outcomes and reject those that will not.” The key for them, then, is that justices can use this rule to make “strategic calculations throughout the decision making process” (p. 121).

In the end, this part of the Court’s decision-making process plays a vital role for the justices. Indeed, it is clear that decisions made at this stage of the process have a great deal to do with the decisions the justices make on the merits of a case.

Decision on the Merits: Litigant Briefs

Litigants lucky enough to have a case accepted for review by the Supreme Court submit a second round of briefs. These briefs are meant to convince the justices who should win the case. The rules surrounding these briefs on the merits are discussed along with the research that seeks to explain the extent to which written arguments affect the decisions justices make.

The Rules that Govern Supreme Court Briefs

“Rules of the Supreme Court of the United States” is an 83-page document created by the Court that provides, among other things, several sections of detailed information on how to properly file, format, and write a brief. The real paper-shuffling begins once the Court has accepted a case: from this point the petitioner has 45 days to file a merits brief, and the respondent’s brief is required 30 days later. Petitioners are allowed a reply to the respondent’s brief, but it must be submitted at least one full week before oral arguments are heard, and no more than 30 days after the respondent’s brief is filed. Litigants may request extensions on these time frames; however, “an application to extend the time to file a brief on the merits is not favored” (Rule 25.5).

In addition to a rigid time frame, the Court also outlines specifics for the formatting and length of briefs. As dictated by Rule 33, all briefs (merits, response, amicus ) are printed on 60-pound paper in booklet format measuring 6 1/8th inches by 9 1/4th inches. These booklets are then bound by saddle stitch or perfect binding, and covered with 65-pound card stock paper of the appropriate color. Merits briefs for both petitioner and respondent are limited to 15,000 words and covered in light blue or red paper, respectively. The petitioner’s reply brief is not to exceed 6,000 words and should have a yellow cover. Each brief may include appendixes of unlimited length, however additional arguments should not appear in these appendixes. 18

One source of briefs not yet discussed is amicus groups. Amici , or friends of the Court, are most often interest groups or established organizations that file a brief in support of either side. 19 Such briefs are limited to 9,000 words, and should “bring to the attention of the Court relevant matter[s] not already brought to its attention by the parties” (Rule 37.1). Although limited in words, there is no limit to the number of separate amicus groups that can file. In the 2012 term, for example, multiple amicus briefs were filed in 67 of the 76 cases granted review. Amicus participation ranged from zero to 97 briefs—the former occurring in only two cases, with the latter in support of Hollingsworth v. Perry ( 2013 ), one of the term’s two same-sex marriage cases.

Finally, Supreme Court rules dictate that forty copies of every single brief (petitioner, respondent, reply, and amicus ) are delivered to the Court in hard copy, as per the rules explained previously. Considering the hundreds—if not thousands—of pages filed for every case appearing before the Court, such strict rules are necessary to maintain any semblance of order and organization. With so much time, effort, and paper spent on brief writing—and subsequent reading—the extent to which briefs affect outcomes is considered.

Do Briefs Affect Case Outcomes?

Litigant and amicus briefs serve two broad purposes: to provide information to the Court, and to set the bounds of policy space from which legal opinions can be drawn. The informational nature of briefs is evident given the pure volume provided to the Court, but what sort of information is contained in these myriad pages? Johnson ( 2004 ) offers such insight; he provides a breakdown of issues briefed in a random sample of 75 Burger Court civil liberties cases. Note that litigant briefs most often address policy and constitutional issues—this is not surprising given the description of justices as seekers of policy preferences (Epstein & Knight, 1998 ; Segal & Spaeth, 2002 ). Indeed, these two issues dominate litigant briefs and account for over 70% of all briefed issues.

Further, when both amicus and litigant participation are considered, the Court still receives the most information regarding policy and constitutional issues. Note, however, there are clear differences in the types of information each brief provides. Specifically, amicus briefs refer more often to precedent and external actors. This is, again, unsurprising as amici are by definition an external actor; it would make sense that their briefs would inform the Court on their preferences as well as additional precedent that would support their preferences.

Next, existing research demonstrates that legal briefs submitted to the Court often set the boundaries of a case by framing the issues for the justices (Wahlbeck, 1998 ). To this end, the legal model of decision-making posits that justices care about the law and are bound to it, and scholarly work in this area agrees. For example, Epstein and Kobylka ( 1992 ) examine legal change in the jurisprudence of abortion and death penalty cases. While they consider factors such as public opinion and a changing political and social environment, Epstein and Kobylka ultimately conclude, “it is the law and legal arguments as framed by legal actors that most clearly influence the content and direction of legal change” ( 1992 , p. 8). Later work by Epstein, Segal, and Johnson ( 1996 ) examines briefs and opinions, concluding that the Court follows the doctrine of sua sponte —a norm disfavoring issue creation during opinion writing. Finally, Corley ( 2008 ) uses plagiarism software to detect when majority opinions “borrow” phrases and sentences from litigant briefs. She finds the quality of a brief—as defined by the experience of the writing attorney—positively affects the chances a justice will “borrow.” Taken together, this line of research suggests that briefs directly impact the decision-making process by providing the Court with valuable information, and by constraining their choice-set by setting policy boundaries.

Decisions on the Merits: Oral Arguments

Once the Supreme Court grants review in a case the parties file legal briefs to convince the justices how to decide. In addition to the briefs, the justices sit for oral arguments. During these proceedings attorneys for each side of a case present their best arguments to the justices in an effort to convince the Court to rule in a particular way. This section considers the role justices play in this part of their decision-making process.

In the Supreme Court’s early days great lawyers such as Daniel Webster, John Calhoun, William Pinkney, and Henry Clay often appeared before the justices. In this time period oral arguments were elaborate oratories but, more important, they often provided the justices with their only source of information about a case: briefs were rarely if ever submitted and outside parties did not submit amicus curiae (friend of the Court) briefs as they do today. The result was that the justices placed no time limitation on the argument sessions. As such, advocates sometimes spoke for many hours over multiple days. In one case, for instance, Davis ( 1940 ) points out that Webster and his rival argued for a full ten days. In stark contrast to contemporary arguments, historians suggest that the justices rarely interrupted the advocates with questions or comments (compare Warren, 1922 with Johnson et al., 2009 ).

Certainly, hearing arguments over many days was possible because the Court heard so few cases in its early days. However, the Court’s rising caseload soon made such indulgences impossible. In addition, it seems that, at some point, the justices could no longer handle such long sessions. As one biographer put it, Chief Justice John Marshall complained of boredom (Beveridge, 1929 ) and Justice Joseph Story found the arguments “excessively prolix and tedious” (Hughes, 1928 ). Just as certainly as days-long arguments were possible for the early Court, such a model was untenable as the justices’ caseload increased. As a result, in 1849 they instituted Rule 53, which limited each attorney to a two-hour argument (Frankfurter & Landis, 1928 ). The justices simultaneously required the first written arguments, consisting of an abstract of points and authorities (Frankfurter & Landis, 1928 ). Today, and since 1970 , the time allotted for these has been limited to 30 minutes per side.

The modern time constraints on oral arguments may be due to the fact that the justices have so much information at their disposal prior to these open court sessions. Indeed, today they possess litigant briefs (Epstein & Kobylka, 1992 ), briefs amicus curiae (Spriggs & Wahlbeck, 1997 ), briefs on certiorari (Caldeira & Wright, 1988 ), media accounts (Epstein & Knight, 1998 ), and lower court opinions. Further, unlike the Court’s early days, when the justices were transfixed by the great orators (or put to sleep from boredom) they largely control the argument sessions today. Specifically, one analysis of 347 cases over four recent terms included 43,000 utterances and 1.4 million words spoken by the justices (Black et al., 2009 ). It seems then, in modern cases, the justices now speak as much or more so than do the attorneys. The question is whether such questioning has some bearing on how the justices decide.

Do Oral Arguments Affect Justices’ Decisions?

As with the other aspects of the decision-making process, evidence accumulated over the last decade establishes that, generally, oral arguments play an integral role in the Court’s decision-making process (Johnson, 2004 ; Wrightsman, 2008 ). First, as policy-oriented political actors, justices are clearly concerned with questions of policy. Johnson ( 2004 ) demonstrates that in cases without amicus participation, 40% of the Court’s questions focus on policy, and this increases to 43% when amici participate. Second, justices spend a great deal of time asking questions about the preferences of actors external to the Court (Johnson, 2004 ). Indeed, in his sample of cases Johnson ( 2004 ) shows that 1,159 (36%) questions fall into this category when amici are not present in a case. This total is similar when amici participate: 787 (34%). Finally, justices raise questions about institutional constraints (precedent and threshold issues) they may face, but fewer of them than about the other issues. Specifically, when amici participate, 13.7% of all questions focus on precedent or threshold issues, and 13.2% focus on these issues in cases without amici .

Beyond the information they provide to the justices, there is evidence that the quality of oral arguments forwarded by attorneys during these proceedings affects justices’ votes (Johnson, Wahlbeck, & Spriggs, 2006 ). Indeed, even justices predisposed to vote for a particular side (based on their ideological predilections) tend to vote more often for the side that offers better arguments in open Court. Finally, there is mounting evidence that, during oral arguments, justices foreshadow how they will decide (Shullman, 2004 ; Roberts, 2005 ; Johnson, Black, Goldman, & Treul, 2009 ; Black, Wedeking, & Johnson, 2012 ). Such signals emanate from the number of questions justices ask the attorney for each side of the dispute as well as from the emotive tenor of these questions. When justices give one side a harder time (by asking more questions) or when they ask that side questions using less pleasant language, it is more likely to lose the case (while this does not necessarily show causality the correlation between these phenomena is quite robust).

Justices’ conversations with attorneys are not the only discussions that take place during oral arguments. Rather, they are prone to speak to one another as well. Anecdotally, Wasby et al. argue that, “it is not surprising that the judges would use part of the oral argument time for getting across obliquely to their colleagues on the bench arguments regarding the eventual disposition of a case” (Wasby, D’Amato, & Metrailer, 1977 , p. xviii). They conclude elsewhere that, “Another, less noticed function is that oral argument serves as a means of communication between judges” (Wasby, D’Amato, & Metrailer, 1976 , p. 418). Recent work corroborates these anecdotal findings. Black et al. ( 2012 ) provide systematic evidence that justices speak to (and often speak over) one another, listen to their colleagues’ questions and comments, and use the oral arguments to predict the outcome of the case.

Overall, despite the conventional wisdom through the last decade of the 20th century, scholars have now made clear that the hour-long sessions in open Court can and do affect the decisions justices make. They clearly elicit information from the attorneys that helps them do so. In addition, they make their positions clear with how they ask questions and also speak to each other through their questions and comments. What happens once the justices retire back to the confines of the Marble Palace?

Decisions on the Merits: Conference Discussions

Chief Justice Roberts has said publicly that, “We [the Court] are the most transparent branch of government. Everything we do that has an impact is done in public. . . . You see our work in public at the Court. Our decisions are out there” 20 Interestingly, the chief’s contention is the fact that, unlike the elected branches, the Court issues explicit public justifications (in the form of written opinions) for the decisions they make. The problem with this argument is that the public aspect to which the chief refers is only the end product. With the exception of the oral arguments (see Decisions on the Merits: Oral Arguments) the remainder of the decision-making process occurs behind closed doors in the marble palace. The justices’ conference discussions and why these discussions are important for how justices decide are examined.

Overview of Conference

While the justices sit for oral arguments on Mondays, Tuesdays, and Wednesdays during the term, private conference discussions take place on Wednesdays and Fridays. These discussions serve two purposes—to choose cases from the discuss list to set for future arguments and to vote on the cases that have already been argued.

Because the justices meet in conference twice a week, they use Wednesday conferences to discuss the merits (outcomes) of cases heard Mondays and Tuesdays. Friday conference is therefore reserved for cases argued on Wednesdays. 21 These meetings, held in the conference room that adjoins the chief’s chambers, are completely private. That is, nobody is allowed in the room except the justices. If something is needed from outside the room the most junior justice calls to make the request. 22

When conference begins the chief justice presents the facts of the first case. From there he offers his personal view of the case and then casts his vote. 23 When the chief is done the associate justices offer their views and votes in order of seniority. That is, the most senior associate justice presents and votes next with each justice doing so until the Court’s newest member finishes the discussion. 24 Usually the justices have a fairly good idea of how they will vote in the case, but there are times when they are less certain. 25 The justices repeat this process for each case argued during the current week.

The Importance of Conference Discussion and Votes

Scholars have emphasized for decades that conference votes are only the tip of the iceberg for the business the justices conduct (see, e.g., Epstein & Knight, 1998 ). However, the only data normally available to scholars are the conference votes. 26 Little information exists about the legal and policy issues the justices discuss during conference, which means scholars have largely ignored this part of the Court’s decision-making process. Despite the paucity of research in this area there is evidence to suggest the justices discuss the key aspects of cases they decide. Johnson ( 2004 ) demonstrates that, during conference, the justices clearly pick up on issues briefed by the parties and on issues discussed during oral arguments. More specifically, justices discuss policy options and key precedents during their private conference discussions. Similarly, Knight and Epstein ( 1996 ) find that the justices clearly discuss precedent at conference. For them, this suggests the justices believe they are bound by the norm of respecting past decisions. In short, while scholars do not yet have a full picture of what transpires during conference, these studies provide insights that have, until the past decades, eluded scholars and Court watchers alike.

Beyond the discussions about the specific issues the justices must decide, conference is important because how the justices vote determines who will ultimately write the majority opinion in a case. If the chief justice votes with the majority at the end of a case discussion he has the authority to choose who write the majority opinion. 27 This prerogative helps him influence the Court’s agenda because he can select either an author whose opinion is close to his own preferences or one who will minimize the prospective policy loss if the chief’s preferred outcome does not prevail (Epstein & Knight, 1998 ; Maltzman, Spriggs, & Wahlbeck, 2000 ). More specifically, Maltzman, Spriggs, and Wahlbeck ( 2000 ) demonstrate that the justice who assigns the opinion has some power to set the agenda for the majority coalition because the writer gets the first move in the bargaining process. The chief exercises this discretion and guides the opinion toward his preferred position by assigning it to ideologically proximate justices (or to himself), especially in important cases. In other words, although the chief justice is constrained by norms, like equitable distribution of assignments, he has the power to choose who will articulate the Court’s opinion and the lens through which a case will be decided. 28

There is clear evidence that chiefs (and sometimes senior associates) act strategically to ensure the opinion assignment power. Johnson, Spriggs, and Wahlbeck ( 2005 ) note that Chief Justice Warren Burger was renowned for casting votes at conference that would allow him to control the Court’s agenda through opinion assignment. Indeed, Burger often changed his initial votes to join the majority coalition, cast “phony votes” by voting against his preferred position, and sometimes declined to express an initial position at conference (see Woodward & Armstrong, 1979 ; Epstein & Knight, 1998 ). This behavior led one critical justice to point out that, “all too damned often the Chief Justice will vote with the majority so as to assign the opinion, and then he ends up in dissent” (Schwartz, 1990 , p. 14).

Although many claimed that Burger attempted to manipulate the Court’s agenda through opinion assignment, he was probably not the first chief to vote in this manner during conference. Indeed, Murphy ( 1964 ) traces sophisticated voting to control opinion writing to John Marshall. Although short on supporting evidence, some argue that Marshall wrote opinions “even in cases where he dissented” (Schwartz, 1993 , p. 152). As Murphy ( 1964 , pp. 84–85) hypothesized of chief justices when they were the first to speak and the last to vote, “Thus, before he finally commits himself, he knows where each Justice stands—at least for the present—and which side will most probably win. If his own views are going to be in the minority, he can vote with the majority and retain the opinion-assigning authority.”

Data drawn from the archives of Justice Lewis F. Powell (at Washington and Lee University) illustrate one particular strategy chiefs may use during conference—passing on their chance to cast the initial vote. Johnson et al. ( 2005 ) analyzed how often each justice passed on an initial vote in a sample of cases decided during the Burger Court. From their data it is clear that Burger, and then to a lesser extent, Rehnquist (when he became chief in 1986 ) passed on the initial vote significantly more often than associate justices. In fact, Burger was more than twice as likely to pass as any other justice on the bench. Rehnquist is also interesting as he passed 10 times more often once he was elevated to chief. Certainly the senior associate justices (Justice Douglas then Justice Brennan in this sample) passed more often than their colleagues (with the exception of Justice Stewart) but not nearly as often as chiefs.

The bottom line is that conference is a time when the justices finally speak to one another candidly about a case and cast their preliminary votes. While scholars have given this part of the Court’s decision-making process short shrift it is clearly important for how the justices decide. In fact, it sets the stage for the final part of the process—opinion writing.

Decisions on the Merits: Opinion Writing

After conference the writing process might seem straightforward, but this is not always the case. Keeping in mind that a majority opinion author must write an opinion that pleases at least four other members of the Court, the task is best described as a dynamic and malleable process whereby justices strategically maneuver in an attempt to satisfy their policy preferences (Maltzman, Spriggs, & Wahlbeck, 2000 ). In order to fully explicate the complexities of opinion writing, the process is described, the two main (and competing) models of opinion writing that define key actors who influence the final content of the majority opinion are summarized, and a case study of Gannett v. DePasquale —an exemplar of the opinion-writing and decision-making process—is presented.

Opinion Writing: A Step-by-Step Guide

Due to the volume of work and time constraints faced by the Court, many justices in the modern era use their law clerks to draft initial versions of opinions (Wahlbeck, Spriggs, & Sigelman, 2002 ; Peppers, 2006 ; Peppers & Zorn, 2008 ). Clerk’s legwork in hand, the opinion author prepares a first draft and, once complete, circulates this draft to the Court. At this point, no justice is bound by her stated policy preference or vote at conference; she instead has four options. She may join the opinion immediately, suggest some sort of change—via suggestion or threat, announce she is waiting before she takes any action, or circulate a concurrence or dissent (Maltzman, Spriggs, & Wahlbeck, 2000 ). The modal category is “join” (Maltzman, Spriggs, & Wahlbeck, 2000 ).

When a justice levels a threat or indicates a willingness to circulate a separate opinion the majority opinion author takes these indications particularly seriously. In particular, the existence of a well-crafted dissenting opinion has the potential (however small) to steal the majority, especially if it can satisfy the demands of the median justice (Lax & Cameron, 2007 ). Because justices wish to see their policies etched into law, majority opinion writers therefore seek to mitigate such potential threats. Warding off a dissenting opinion, however, can be difficult. Lax & Cameron ( 2007 ) employ game theoretic models to demonstrate the impact of time and effort costs on a would-be dissenter. In short, a majority opinion author must craft a sufficiently high-quality opinion that captures the median justice in order to prevent potential dissenting opinions from gaining traction.

No additional effort or response is necessary from the author when a justice immediately agrees to join his opinion. However, gaining the votes of justices who suggest changes to an opinion or who announce they are waiting, is a different matter. In these instances, scholars disagree as to which justices exert the most influence over the opinion author, and therefore over legal policy.

Opinion-Writing Models

Scholars who investigate an author’s plight to command a majority often model opinion content as a corollary of ideology, pointing to two key players: the Court’s median member and the opinion author herself. The bench median model mirrors legislative models of the median-voter theorem in assuming policy converges on the median voter; it is, after all, this voter who must be captured in order to gain a majority and thereby create policy (Black, 1958 ). Applied to Supreme Court scholarship, the median justice is the swing vote and so may reject an opinion that falls too far from his ideal point. In fact, a majority opinion that does not perfectly satisfy the median justice allows the minority coalition an opportunity to craft such an opinion and capture this essential swing vote (Lax & Cameron, 2007 ). Extensive work by Spriggs and Hansford ( 2001 ) provides empirical support for this model. Their findings indicate that, indeed, the Court median exerts influence over the majority opinion.

Beyond the Court median, the opinion author exerts influence on the substantive outcome of a case. This agenda-control model stresses the importance of an opinion author in pulling opinion policy away from the median and closer to his own ideal point (Murphy, 1964 ; Rohde, 1972 ; Rohde & Spaeth, 1976 ; Slotnick, 1978 ; Slotnick, 1979 ; Brenner & Spaeth, 1988 ). Recent work by Bonneau, Hammond, Maltzman, and Wahlbeck( 2007 ) adds to this body of work by incorporating a legal status quo. In this model, a justice’s decision to join an opinion is operationalized as a simple choice between the existing majority opinion and the lower court decision: any justice preferring policy offered in the majority opinion will sign on.

In sum, the rich body of literature on opinion writing provides ample evidence that the opinion author and the Court median exert particular influence over opinion content, and therefore policy. This is not to say the other seven justices are moot—to the contrary, the following example demonstrates the impact any single justice can have in this dynamic process.

Opinion-Writing as a Dynamic Process

Examining historical documents available for Gannett Co. v. DePasquale , 443 U.S. 368 ( 1979 )—a case involving freedom of the press and courtroom access—gives clear insight to this dynamic process. 29 To begin, the majority opinion was assigned to Justice Blackmun by Justice Brennan—this means that Justices Burger and Stewart were not in the majority when votes were counted at conference, but that both Brennan and Blackmun were. 30

On the 4th of April, Blackmun circulated a first majority opinion draft. The very next day Brennan signed the opinion after making a few minor suggestions, Stewart made known his intentions of writing a dissenting opinion, White declared he would await Stewart’s dissent before signing any opinion, and Stevens attempted to bargain with Blackmun. Specifically, Stevens believed Blackmun’s opinion went too far in favor of First Amendment rights (freedom of press), rather than Sixth Amendment rights (right to a speedy and public trial), and he was hoping Blackmun would back off this stance. In the meantime, Marshall joined Blackmun’s opinion and 13 days later Stevens joined Stewart’s dissenting opinion on the exact day it was circulated, noting, “I may add a paragraph of my own.” At this point, Blackmun was still two votes shy of commanding a majority.

Despite this deficit, Blackmun responded to Stewart’s dissent with, “The dissent merits a mild response. I shall circulate it later today.” Blackmun’s three-page response highlights the key differences in how each coalition wanted to set policy. Blackmun, along with Brennan and Marshall, wanted to set a clear legal ruling that carried a presumption of open access to trials as implied by the Sixth Amendment and considered preliminary hearings part of a trial. Stewart, and at this point, Stevens, felt the Sixth Amendment’s guarantee to a speedy and public trial was meant to protect the accused , not the public. Given this choice-set, and despite his earlier preference to await Stewart’s dissent, White joined Blackmun’s opinion creating a presumptive majority: Blackmun, Brennan, Marshall, White, and Powell. Although Powell had not yet declared any intentions, he had voted with this coalition at conference. This is not, however, how the majority opinion turned out.

On May 8th Chief Burger circulated a dissenting opinion, and also declared he would sign onto Stewart’s dissent with Rehnquist following shortly after. The following day, Powell sent a memo to Blackmun expressing doubts about how the majority opinion was taking shape. He too felt the crux of the issue was striking a correct balance between First and Sixth Amendment rights, but that Blackmun’s opinion tilted too far in favor of the press. Faced with these dichotomous policy choices, Powell eventually joined Stewart’s opinion and became the requisite fifth vote to transform that dissent into a majority opinion.

This example highlights two key aspects of the opinion-writing process. First, different justices employed different tactics in attempting to move policy closer to a preferred point. While White (the Court median) held out, some justices directly bargained Rehnquist and Brennan while others wrote separate opinions. Second, the central debate concerned specific aspects of policy, and not simply a decision to reverse or affirm the lower court’s ruling. This idea transcends the traditional liberal-conservative notion of decision-making to reveal a Court concerned with degrees and balancing rather than such simple dichotomizations.

The Frontiers of Court Research

The process by which the U.S. Supreme Court makes decisions has been the focus of a great deal of scholarly attention. Yet, there is more left to learn about our nation’s highest court. Scholars have only broken the surface of analysis about the Court’s most secretive meeting—the justices’ weekly conference. Further, there is growing debate about how the linguistic nature of justices’ words affects their decisions. While work has been done on how the language justices use during oral arguments impacts their decisions (Black et al., 2011 ; Johnson, Black, Goldman, & Treul, 2009 ) there is much work to be done. Indeed, scholars should focus on attorneys’ language during the arguments as well as in the briefs they submit to the Court (see, e.g., Corley, 2008 ). Further, scholars should consider how the choice of language in the Court’s opinions affects lower court decisions and how the public views the justices’ policy choices. In short, future work on the Court can and should continue to focus on the language of the law because it is the language that matters. In other words, how the Court rules (reverse or affirm) is simply not as important as the rules the justices set in their opinions. Linguistic analysis of our nation’s highest court is therefore the next frontier of judicial politics research.

U.S. Supreme Court justices are clearly political actors with policy preferences they seek to etch into federal law. However, they are limited in their ability to always reach their preferred outcomes by the fact that they do not make decisions in a vacuum and by the fact that rules and norms of behavior govern their decision-making process. While the Court is a unique institution, it is clear that it shares these characteristics with other courts within and beyond the United States.

Authorities Cited

• Bush v. Gore , 531 U.S. 98 (2000).
• DeFunis v. Odegaard , 416 U.S. 312 (1974).
• Flast v. Cohen , 539 U.S. 83 (1968).
• Gannett Co. v. DePasquale 443 U.S. 368 (1979).
• Hollingsworth v. Perry , 570 U.S. __ (2013).
• Hustler Magazine v. Falwell , 485 U.S. 46 (1988).
• Lawrence v. Texas , 539 U.S. 558 (2003).
• Longshoremen’s Union v. Boyd , 347 U.S. 222 (1954).
• Marbury v. Madison , 5 U.S. 127 (1803).
• National Federation of Independent Business v. Sebelius , 567 U.S. __ (2012).
• Shelby County v. Holder , 570 U.S. __ (2013).
• Baum, L. (1997). The puzzle of judicial behavior . Ann Arbor: University Of Michigan Press.
• Baum, L. (2001). The Supreme Court (7th ed.). Washington, DC: CQ Press.
• Beveridge, A. J. (1929). The life of John Marshall . Boston: Houghton Mifflin.
• Black, D. (1958). The theory of committees and elections . London: Cambridge University Press.
• Black, R. C. , & Boyd, C. L. (2013). Selecting the select few: The discuss list and the U.S. Supreme Court’s agenda-setting process. Social Science Quarterly , 94 (4), 1124–1144.
• Black, R. C. , & Owens, R. J. (2012). The Solicitor General and the United States Supreme Court . New York: Cambridge University Press.
• Black, R. C. , Schutte, R. A. , & Johnson, T. R. (2013). Trying to get what you want: Heresthetical maneuvering and U.S. Supreme Court decision making. Political Research Quarterly , 66 (4), 819–830.
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1. It has invoked this power since Chief Justice John Marshall declared such power in Marbury v. Madison ( 1803 ).

2. Some scholars disagree with this assessment (see, e.g., Rosenberg, 1991 ).

3. Oral arguments and opinion announcements are technically public, but not fully so. The Courtroom holds only 250 seats for spectators, and there are no cameras allowed during either proceeding. Of course, it is easier today to hear what transpires in the Courtroom. Oyez.org makes these sessions available at the end of each week during the Court’s term. These audio files can also be found at supremecourt.gov.

4. Portions of this section are drawn from Johnson ( 2004 ).

5. They are right to note (1995, p. 22) that this number would probably be higher had they also had access to more than just Brennan and Marshall’s papers for this study. Indeed, if they could have seen the private memos sent or received by all of the justices who were on the Court during the time period of their sample, their hypothesis may have been supported with even stronger evidence.

6. Other scholars have provided evidence of strategic interaction at almost every stage of the Court’s decision-making process, including during the agenda setting ( certiorari ) stage (Caldeira, Wright, & Zorn, 1999 ), during oral arguments (Johnson, 2004 ), and during conference discussions (Johnson, Spriggs, & Wahlbeck, 2005 ).

7. Threshold issues are defined as the requirements from Article III of the Constitution that there must actually be a case or controversy in order for the Court to decide a case.

8. The exceptions clause in Article III of the Constitution gives Congress the power to alter the Court’s appellate jurisdiction as it sees fit.

9. That a case must be justiciable (meaning there is a case or controversy that can be decided by the Court) also stems from the Article III requirement that the Court can only decide cases and controversies. For instance, cases cannot be moot ( DeFunis v. Odegaard [ 1974 ]) but must also be ripe for review ( Longshoremen’s Union v. Boyd [ 1954 ]).

10. For instance, at any time a member of Congress may write legislation limiting the right to choose abortion on demand. While the politics of the House and Senate make it unlikely that any given piece of legislation will be brought to a vote, any member may still attempt to introduce such a law. Justices, however, must wait for a case to be brought to it. Only then may they take up the issue and work toward changing the law or maintaining the status quo.

11. Today almost all appeals come through the Court’s certiorari (cert.) process. This legal term means literally “to be informed of, or to be made certain in regard to.” The key for the justices is that cert. cases are part of the Court’s discretionary docket. In other words, the justices do not have to decide these cases.

12. At this point outside parties may weigh in on whether the Court should take the case. These groups, called amici curiae (friends of the Court), affect the probability the justices will hear a case (see, e.g., Caldeira & Wright, 1988 ).

13. The chief is often considered first among equals (Stevens, 2012 ) but has some power at several points during the Court’s decision-making process. Creating the initial draft of the discuss list (more generally being able to mold the Court’s possible agenda) is considered one of these powers.

14. Prior to the discuss list the Court actually used a “dead list,” which was the opposite of today’s practice. The dead list included cases that were not going to be discussed or voted on by the justices. A case that was “dead listed” was automatically denied review by the Court.

15. Very few powers are granted to the minority in the federal government. Beyond the Rule of Four, the key power reserved to a minority is the filibuster in the U.S. Senate (see, e.g., Fang, Johnson, & Roberts, 2007 ).

16. In 1916, however, Congress passed a law that the Court interpreted as giving it discretion over whether or not to hear appeals from state courts that raised federal issues. This was a major change, as Hartnett ( 2000 ) points out: “the Supreme Court produced a fundamental change in the relationship between itself and state courts in constitutional cases—a change far larger than Congress evidently anticipated. As I shall see, this was not the last time that the Court expanded its discretionary control over its caseload beyond that contemplated by Congress.”

17. This means the justices believe they made a mistake (they were improvident) by placing the case on the Court’s agenda. As such, they end (dismiss) the case without making a decision on the merits. Such a choice may happen before oral arguments but often happens after these proceedings.

18. See, for example, the joint appendix in one of the Court’s famous libel cases— Hustler Magazine v. Falwell ( 1988 ).

19. Note that amici can file in support of a judgement rather than a party; however, this is rare.

20. The chief justice made this comment during a C-SPAN forum on cameras in the courtroom. “ Chief Justice Roberts Worried about ‘Impact’ of Cameras in SCOTUS .” Real Clear Politics, June 27, 2011.

21. Note, however, that when the Court is in one of its two-week argument sessions the justices hold only Friday conferences.

22. The most junior justice (today it is Justice Kagan) must also answer the door if anyone knocks. This (semi onerous) task was held by Justice Breyer from 1994 through January of 2006. His tenure as the junior associate justice is one of the longest in history.

23. All votes at conference are preliminary. That is, justices can and do change their votes between conference and the time the Court announces its final decision. Epstein and Knight ( 1998 ) demonstrate that at least one justice changes a vote in 50% of all cases.

24. Since at least the time of John Marshall’s tenure on the Court (and through the 1960s), the discussion of a case at conference started with the chief and concluded with the most junior justice, while voting proceeded in the opposite fashion (see Clark, 1959 ). As Justice Brennan ( 1960 , p. 402) described: “The junior justice votes first and voting then proceeds up the line to the Chief Justice who votes last.” Sometime in the mid-1960s, however, this voting rule changed, and both discussion and voting in a case now proceeds based upon seniority, with the chief both discussing a case and voting first (see Rehnquist, 2001 , p. 254).

25. Today, the justices speak in this order: Chief Justice Roberts, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, Justice Alito, Justice Sotomayor, and Justice Kagan (until his death on February 13, 2016, Justice Scalia spoke second at conference).

26. These notes come from the papers of former justices. Both Justice Blackmun and Justice Brennan left their Court papers to the Library of Congress. Within these papers are docket sheets that note how each justice voted in each case the Court decided during Blackmun or Brennan’s tenure on the bench.

27. If the chief is not in the majority, then the senior associate in the majority holds this power.

28. While justices do not specialize in particular areas of the law, and opinions are not assigned based on a justice’s perceived expertise in an issue area, expertise may affect a chief’s choice of assignment. For example, Brenner and Spaeth ( 1988 ) suggest chiefs may call on colleagues who have more experience writing in a given area of the law. They do so in order to “ensure the smooth and efficient operation of the Court” (Maltzman & Wahlbeck, 1996 , p. 427).

29. More specifically, the defendants in this case (who had been charged with murder, robbery, and grand larceny) argued that the press should be excluded from their pre-trial evidentiary hearings because all of the pre-trial publicity was adversely affecting their ability to obtain a fair trial. The Court agreed and in an opinion written by Justice Stewart, argued that the public does not possess a right to attend criminal trials.

30. This deduction is based on the seniority rule of opinion assignment discussed previously.

Related Articles

• Agenda Setting and Case Selection on the U.S. Supreme Court
• The Judicial Hierarchy
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Roe v. Wade and Supreme Court Abortion Cases

Reproductive rights in the United States, explained.

Is abortion a constitutional right?

Roe v. wade, what was the impact of the roe v. wade decision.

• The law after  Roe v. Wade

Supreme Court justices’ abortion views

Not under the U.S. Constitution, according to the current Supreme Court. In  Dobbs v. Jackson Women’s Health Organization  (2022), the Supreme Court overturned  Roe v. Wade  (1973), which guaranteed a constitutional right to abortion. Some state constitutions, however, independently protect abortion rights.

In  Roe v. Wade , the Supreme Court decided that the right to privacy implied in the 14th Amendment protected abortion as a fundamental right. However, the government retained the power to regulate or restrict abortion access depending on the stage of pregnancy. And after fetal viability, outright bans on abortion were permitted if they contained exceptions to preserve life and health. 

For the following 49 years, states, health care providers, and citizens fought over what limits the government could place on abortion access, particularly during the second and third trimesters. But abortion was fundamentally legal in all 50 states during that period.

Writing for the majority in  Dobbs , Justice Samuel Alito said that the only legitimate unenumerated rights — that is, rights not explicitly stated in the Constitution — are those “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Abortion, the majority held, is not such a right. 

Following  Dobbs , reproductive rights are being decided state by state.  Constitutions in 10 states  — Alaska, Arizona, California, Florida, Kansas, Massachusetts, Minnesota, Montana, New Jersey, and New Mexico — have been interpreted by state high courts to guarantee the right to abortion or protect access more strongly than the federal constitution. Other state legislatures have passed laws protecting abortion rights. Many states, however, have  made abortion illegal .

The road to  Roe

Abortion was illegal in most states in the 1960s, often with no exceptions for cases of rape or threat to life. A pair of high-profile crises, however, shined a spotlight on the impact of these restrictions.

Beginning in the late 1950s, thousands of babies were born with severe birth defects after their mothers took the morning sickness drug thalidomide while pregnant. The most well-known case was that of Sherri Finkbine, a host of the children’s television program  Romper Room , who was forced to travel to Sweden to obtain an abortion. A Gallup poll showed, perhaps surprisingly given the legal backdrop, that a majority of Americans  supported  Finkbine’s decision.

Shortly after the thalidomide scandal, an epidemic of rubella, or German measles, swept across the country. Babies that survived rubella in utero were often born with a  wide range of disabilities  such as deafness, heart defects, and liver damage. (A  rubella vaccine  didn’t become available until 1971.)

It was in this environment of maternal risk that high-profile doctors like  Alan Guttmacher  began to argue publicly that abortion should be treated like other medical procedures — as a decision to be made between physician and patient.

Griswold v. Connecticut  (1965)

While thalidomide and rubella impacted public perspectives on abortion, a series of cases built the foundation for the coming revolution in abortion law. The first involved the right to contraception, and the story begins in the 19th century.

In 1879, Connecticut senator P.T. Barnum (yes,  that  P.T. Barnum)  introduced a bill  barring not only contraceptives but also the distribution of information relating to them. The Barnum Act was still on the books in Connecticut in 1960, when the Food and Drug Administration approved the first oral contraceptive. Estelle Griswold, executive director of the Planned Parenthood League of Connecticut, was fined $100 for violating the law. Her appeal went all the way to the Supreme Court.

In  Griswold v. Connecticut , a seven-justice majority struck down the Barnum Act. Justice William O. Douglas explained that the Bill of Rights implies a right to privacy because when viewed as a coherent whole, it focuses on limiting government intrusions. The  Griswold  majority held that the government cannot prevent married couples from accessing contraception. (At the time, the justices did not extend the right to unmarried people.)  Griswold ’s contention that the Constitution creates a zone of privacy into which the government cannot enter paved the way for  Roe , among other landmark decisions.

Eisenstadt v. Baird  (1972)

The road from  Griswold  to  Roe  was not perfectly straight. Two years after  Griswold , reproductive rights activist  William Baird  offered contraceptives to an unmarried woman after a lecture on contraception to students at Boston University. He was sentenced to three months in prison.

Like Estelle Griswold, Baird appealed his conviction to the Supreme Court. In  Eisenstadt v. Baird , the Justices extended  Griswold . Justice William Brennan, writing for the six-justice majority, explained that the 14th Amendment guarantees equal protection under the law. There was no reason to treat married and unmarried people differently with regard to contraception.

United States v. Vuitch  (1971) 

Over the course of nine years, Washington, DC,–based physician Milan Vuitch was  arrested 16 times  for performing abortions, which had been illegal in the district since 1901 except “as necessary for the preservation of the mother’s life or health.”

Vuitch appealed his eventual conviction, arguing in part that the exception for “health” was unconstitutionally vague. The Supreme Court disagreed in  United States v. Vuitch . Taking a broad view of the word “health,” the justices ruled that abortion was legal in the district whenever necessary to protect mental or physical health.

The significance of  Vuitch , however, was to be short-lived.  Roe v. Wade  was already wending its way through the courts by the time of the decision. The day after they decided  Vuitch , the justices voted to hear  Roe . 

The parties to  Roe

Texan Norma McCorvey became pregnant for the third time in 1969. Struggling with drug and alcohol use, she previously relinquished responsibility for her first two children. She decided that she did not want to continue the pregnancy. 

Texas law, however, allowed abortion only to save the patient’s life. With McCorvey six months pregnant, Texas lawyers Linda Coffee and Sarah Weddington filed a suit on her behalf in federal court under the pseudonym Jane Roe.

Henry Wade was a legendary and  controversial  district attorney with an impressive conviction rate, most famous for prosecuting  Jack Ruby , who killed JFK’s assassin, Lee Harvey Oswald. Wade was, however, an odd foil for pro-choice activists. He did not aggressively prosecute illegal abortions and said little about them.

The lower court

A three-judge panel of the U.S. District Court for the Northern District of Texas  struck down  Texas’s abortion ban, finding it overbroad and locating the right to reproductive choice in the 9th and 14th Amendments. Citing  Griswold , the court noted that the Constitution guarantees “the right of choice over events which, by their character and consequences, bear in a fundamental manner on the privacy of individuals.” While the federal court declared the Texas law unconstitutional, it declined to immediately block its enforcement, putting  Roe v. Wade  on a fast track to the Supreme Court.

Norma McCorvey gave birth to a girl, Shelley Lynn, on June 2, 1970, fifteen days before the federal district court issued its ruling. The baby was adopted when she was three days old. Her identity was not known to the public until 2021. 

The  Roe v. Wade  oral argument

Sarah Weddington, who was just 26 years old when she stood before the justices of the Supreme Court on December 13, 1971, built her case for the constitutional right to abortion around the 9th and 14th Amendments, arguing that “meaningful” liberty must include the right to terminate an unwanted pregnancy.

Although the justices were largely receptive to Weddington’s points, Justice Byron White demanded to know whether the right to abortion extended right up to the moment of birth. After some hesitation, Weddington answered yes. Legal personhood began at birth, Weddington claimed. Until that moment, there should be an unfettered constitutional right to abortion.

After Weddington sat down, Texas Assistant Attorney General Jay Floyd stood to defend the state law. He began, inexplicably, with a sexist joke: “It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.” The bafflingly inappropriate comment was followed by three seconds of dead silence.

There was, however, one moment of wit in the argument. When Floyd argued that a woman who becomes pregnant has already made her choice, Justice Potter Stewart shot back, “Maybe she makes a choice when she decides to live in Texas!” The retort brought roars of laughter from the gallery.

Of particular note is how little the oral argument focused on the history of abortion laws during the founding or the post–Civil War era when the 14th Amendment was ratified. The justices focused instead on the biological realities of abortion and the text of the Constitution itself.

Also interesting: Justice Harry Blackmun, who would write the majority opinion in  Roe v. Wade , spoke only twice during the oral argument. By contrast, Justice Thurgood Marshall spoke more than 10 times, Justices White and William Brennan more than 20 times, and Justice Stewart more than 30. (Perhaps this was because Blackmun was initially inclined to  write a much more restrained opinion  than he ultimately did.)

The  Roe v. Wade  opinion

The Supreme Court handed down its decision on January 22, 1973. Seven of the nine justices agreed that the Due Process Clause of the 14th Amendment — which says that no state shall “deprive any person of life, liberty, or property, without due process of law” — implies a right to privacy. The majority seized upon Weddington’s definition of liberty, citing a series of prior cases indicating that the term “liberty” must be interpreted broadly in a free society.

The justices did, however, recognize that the state could place some limits on abortion if necessary to further a compelling state interest. The state’s ability to regulate increased as a pregnancy progressed. And after a fetus reached viability, the state could prohibit abortion, except when necessary to protect health or life.

Justices William Rehnquist and White dissented. Rehnquist argued that privacy, in the constitutional sense of illegal search and seizure, has nothing to do with abortion. In his view, since abortion bans implicate no fundamental rights, they must only have some rational basis, such as protecting a fetus. Foreshadowing the  Dobbs  decision in 2022, Rehnquist also declared that the only recognizable rights not explicitly listed in the Constitution are those with deep roots in the American legal tradition.

Doe v. Bolton  (1973)

On the same day the Supreme Court decided  Roe , it decided  Doe v. Bolton , which challenged Georgia’s abortion ban. The Georgia law limited abortion to cases of documented rape, a severely disabled fetus, or a threat to life. Before the procedure, it was necessary to obtain the approval of a doctor, two additional consulting physicians, and a hospital committee. The law also permitted relatives to challenge the abortion decision. It was, in short, a burdensome process.

In another 7–2 vote, with Blackmun again writing for the majority, the Court ruled that although the rights identified in  Roe  are not absolute, Georgia’s restrictions violated the constitutional right to abortion. He noted that the law established hurdles that were far higher than those that had to be overcome for other surgical procedures.

White and Rehnquist again dissented.

Roe  significantly reduced maternal mortality. A total of 39 women are known to have  died from unsafe abortions  in 1972, and this was almost certainly a drastic undercount. In 1975, there were only three such deaths. In 1965, eight years before  Roe  was decided, illegal abortion  caused 17 percent of pregnancy-related deaths . In modern times, just 0.2 percent of people who undergo abortions even require hospitalization for complications.

It’s not entirely clear what effect  Roe  had on public attitudes toward abortion because public opinion was already in flux before the case was decided. In 1965, just  5 percent  of Americans thought abortion should be legal for married people who simply didn’t want any more children. That number had risen to 36 percent by 1972, the year before  Roe  was decided. After  Roe  came down, pollsters began asking about abortion “for any reason,” and the polls show  relative stability  in the responses to that question since the mid-1970s.

The law after Roe v. Wade

Lingering resistance to abortion, particularly strong in certain parts of the country, led legislatures to test the decision’s boundaries. The Supreme Court issued many major abortion rulings up to the overturning of  Roe v. Wade  in the 2022 case  Dobbs v. Jackson Women’s Health Organization .

• In  Planned Parenthood v. Danforth   (1976), the justices blocked a law requiring spousal consent for abortion.
• Maher v. Roe   (1979) permitted states to exclude abortion services from Medicaid coverage.
• Colautti v. Franklin   (1979) struck down an unconstitutionally vague Pennsylvania law that required physicians to try to save the life of a fetus that might have been viable.
• In  Harris v. McRae   (1980), the Court upheld the  Hyde Amendment , a federal law that proscribed federal funding for abortions except when necessary to preserve life or as a result of rape or incest.
• In  L. v. Matheson   (1981), the Court upheld a law requiring parental notification when the patient is a minor living with parents.
• In  City of Akron v. Akron Center for Reproductive Health   (1983), the justices invalidated a wide range of limitations on abortion, such as a waiting period, parental consent without judicial bypass, and a ban on abortions outside of hospitals after the first trimester.
• Thornburgh v. American College of Obstetricians and Gynecologists   (1986) struck down a law that required informed consent to include information about fetal development and alternatives to abortion.
• In  Webster v. Reproductive Health Services   (1989), Justice Rehnquist upheld rules requiring doctors to test for viability after 20 weeks and blocking state funding and state employee participation in abortion services.
• Rust v. Sullivan   (1991) upheld a ban on certain federal funds being used for abortion referrals or counseling.
• Hill v. Colorado   (2000) upheld a law limiting protest and leafletting close to an abortion clinic.
• Stenberg v. Carhart   (2000) struck down Nebraska’s ban on the  dilation and extraction  abortion procedure.
• In  Gonzales v. Carhart   (2007), a slightly changed Court upheld a federal ban on the dilation and extraction procedure.

Planned Parenthood of Southeastern Pennsylvania v. Casey  (1992)

One case in the period between  Roe  and  Dobbs  deserves special attention. Through the 1980s, abortion opponents demanded the appointment of Supreme Court justices who would overturn  Roe . With the confirmation of Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, anti-abortion activists were confident they had the votes.

In 1988 and 1989, the Pennsylvania legislature adopted new abortion restrictions, including parental consent requirements, spousal notification, a waiting period, and an expanded informed consent process. Planned Parenthood of Southeastern Pennsylvania challenged the law, and many viewed the case as  Roe ’s last stand — an opportunity for the Court to do away with the constitutional right to abortion.

In  Planned Parenthood of Southeastern Pennsylvania v. Casey , however, the new members of the Court disappointed anti-abortion advocates. While the Court replaced  Roe ’s trimester-by-trimester doctrine with a weaker level of protection and upheld elements of the Pennsylvania law that did not unduly burden the right to abortion, the justices declined to overrule  Roe . A plurality opinion authored by O’Connor, Kennedy, and Souter explained that, while Supreme Court precedents are not eternal, there must be a compelling reason to abandon  stare decisis  — the notion that precedents should be upheld. The Court decided there was no adequate justification for overturning  Roe , especially since Americans had arranged their lives around an expectation of control over their reproductive health, including having access to abortion.  Casey  also acknowledged the strong equality concerns that justify abortion rights, arguing that women cannot participate fully in the social and economic life of the nation if they are forced to continue unwanted pregnancies. 

Dobbs v. Jackson Women’s Health Organization  (2022)

In 2018, the Mississippi legislature  banned abortions  after 15 weeks of gestation, except in cases of narrowly defined medical emergency or severe fetal abnormality. The law was a challenge to both  Roe  and  Casey . Jackson Woman’s Health Organization, the sole abortion provider in the state, contested the ban.

Long before  Dobbs  was decided, signs pointed to the Supreme Court’s intention to rescind the constitutional right to abortion. First, in a separate case that first appeared on the Court’s  shadow docket , the justices  allowed a Texas abortion ban  that contravened  Roe  and  Casey  to remain in force. Then, in the weeks before  Dobbs  came down, a draft decision overturning  Roe  and  Casey  leaked out of the Court in an unprecedented breach of Court protocol. 

The final  decision  was little changed from the leaked draft. Writing for the five-justice majority (with Chief Justice Roberts concurring only in the judgment), Justice Samuel Alito argued that the right to privacy is not specifically guaranteed anywhere in the Constitution. When unenumerated liberty rights exist — the right to raise your child as you see fit, for example — those rights must be “deeply rooted in the Nation’s history and tradition.” Reviewing the history of abortion restrictions in the early United States, Alito concluded that the right to abortion is not.

The opinion ignited a firestorm of controversy. Predictably so:  Dobbs  is arguably the first case to formally rescind a fundamental constitutional right. The opinion also  failed to explain  how its logic would not also result in the overturning of  Griswold ’s right to contraception or a series of other cases that rely on the same logic as  Roe . These include  Lawrence v. Texas  (2003), which invalidated laws criminalizing same-sex intimate sexual conduct, and  Obergefell v. Hodges  (2015), which recognized the right to marriage for same-sex couples. 

Also, for many Americans, Alito’s insistence that rights be “deeply rooted” in U.S. history revealed a broad discounting of historically marginalized communities, including women, people of color, and gay Americans. The only rights “deeply rooted” in our history are the ones that served the white, heterosexual men who dominated government at the time of the founding. While  Casey  had begun to address the equality dimensions of abortion rights,  Dobbs  moved in precisely the opposite direction, suggesting that non-majority groups must overcome special hurdles to have their rights recognized.

Abortion rights will now be defined on a state-by-state basis. Several state courts have ruled that their constitutions  guarantee the right to abortion , whether because of explicit references to “privacy” or by relying on language that broadly protects personal autonomy. The  Kansas Supreme Court , for example, has ruled that the constitution’s guarantee of “equal and inalienable natural rights” protects personal decision-making, self-determination, and bodily integrity. Other states have adopted an approach consistent with  Roe , in which the right to privacy, including reproductive freedom, has been recognized as implied in the state constitution.

Following the  Dobbs  case, anti-abortion activists have proposed state constitutional amendments stating that nothing in the constitution protects abortion rights. In some cases, these measures seek to overrule their state courts’ interpretations of the constitution. In others, there has been no court decision regarding the constitutional right to abortion. Other states have, in contrast, moved to expand or cement abortion rights, including through constitutional amendments.

Dobbs  also leaves a long list of unanswered practical questions. Can states ban women from traveling to obtain an abortion? How will they police the importation and use of abortion drugs? How will state courts handle the slew of “trigger laws” — state anti-abortion statutes designed to come into effect upon the overturning of  Roe ? Just as  Roe  set off years of legal uncertainty over the precise boundaries of abortion rights,  Dobbs  has launched a long period of uncertainty over states’ power to restrict abortion in the absence of those rights.

The current Court

• Chief Justice John   Roberts , during his time as a lawyer for the George W. Bush administration, wrote that  Roe  has “ no support  in the text, structure, or history of the Constitution.” In his  Dobbs  concurrence, however, Roberts favored preserving a more limited constitutional right to abortion, without specifying how far it would extend. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of  stare decisis .”
• Justice Clarence Thomas , who was in the  Dobbs  majority, has written that  Roe  was “grievously wrong for many reasons, but the most fundamental is that its core holding — that the Constitution protects a woman’s right to abort her unborn child —  finds no support  in the text of the Fourteenth Amendment.”
• Justice Samuel Alito  complained as a young lawyer in the Reagan administration about “the courts’ refusal to  allow breathing room  for reasonable state regulation” of abortion. In a job application, he wrote, “I personally believe very strongly that the Constitution  does not protect  a right to an abortion.” As the authority of the majority opinion in  Dobbs , he wrote that “ Roe  was . . . egregiously wrong and on a collision course with the Constitution from the day it was decided.”
• Justice Neil Gorsuch , who was in the  Dobbs  majority, has said and written less on abortion than many other justices, but during his confirmation hearing, he noted that  Roe  was “a precedent of the U.S. Supreme Court” and added, “once a case is settled, that  adds to the determinacy  of the law.”
• Justice Amy Coney Barrett  added her name to a 2006 ad  calling for  Roe  to be overturned  and suggested that the possibility of adoption might  obviate the need for abortion rights .
• Justice Brett Kavanaugh , in 2017, proclaimed his admiration of former justice Rehnquist’s  Roe  dissent, noting that his views about unenumerated rights were “successful in  stemming the general tide  of freewheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition.”
• Justice Ketanji Brown Jackson  repeatedly described  Roe  as “settled law” in her confirmation hearings. In the same hearings, when asked when human life begins, she replied simply, “ I don’t know .”
• Justice Sonia Sotomayor  has focused much of her writing about abortion on the cost that bans impose on those who are economically disadvantaged. Objecting to the Court’s decision to allow a Texas abortion ban to stand, Sotomayor wrote, “Those without the ability to make this journey [to a state allowing abortion], whether due to lack of money or childcare or employment flexibility or the myriad other constraints that shape people’s day-to-day lives, may be forced to carry to term against their wishes or  resort to dangerous methods of self-help .” The  Dobbs  dissent, authored by Justice Breyer and joined by Justices Sotomayor and Kagan, continued that theme of disempowerment, lamenting the end of an era in which “respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.”
• Justice Elena Kagan  has a significant and slightly complicated record on abortion. As a lawyer in the Clinton administration, she wrote a  memo recommending  that the president sign a ban on “partial birth abortion” if it contained an exception in cases of serious risk to health. As a justice, however, Kagan has voted consistently against restrictions on abortion. She called a recent Texas abortion ban “patently unconstitutional” and dissented forcefully in  Dobbs . 

Notable past justices

• Justice Stephen Breyer : “Millions of Americans  believe that life begins at conception  and consequently that an abortion is akin to causing the death of an innocent child . . . Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”
• Chief Justice Warren Burger : “The Constitution  does not compel a state to fine-tune its statutes  so as to encourage or facilitate abortions. To the contrary, state action ‘encouraging childbirth except in the most urgent circumstances’ is ‘rationally related to the legitimate governmental objective of protecting potential life.’”
• Justice Ruth Bader Ginsburg : “ Roe v. Wade  sparked public opposition and academic criticism, in part, I believe, because the Court  ventured too far in the change it ordered  and presented an incomplete justification for its action.”
• Justice Sandra Day O’Connor : “The  Roe  framework . . . is  clearly on a collision course  with itself.”
• Chief Justice William Rehnquist : “We do not see why the state’s interest in protecting human life should  come into existence only at the point of viability .”
• Justice Antonin Scalia : “We should get out of this area [abortion law], where we have no right to be, and where we  do neither ourselves nor the country  any good by remaining.”
• Justice Byron White : “The Court apparently  values the convenience of the pregnant mother  more than the continued existence of the life or potential life that she carries.”
• Justice William J. Brennan Jr. : “If the right to privacy means anything, it is the right of the individual, married or single, to be  free from unwanted government intrusion  into matters so fundamentally affecting a person as the decision to bear or beget a child.”
• Justice Anthony Kennedy : “Where it has a rational basis to act, and it does not impose an undue burden, the State may  use its regulatory power  to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”
• Justice David Souter : “I have not got any agenda on  what should be done with  Roe v. Wade , if that case is brought before me.”

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The United States Supreme Court is the highest court in the United States. Lower courts on the federal level include the US Courts of Appeals, US District Courts, the US Court of Claims, and the US Court of International Trade and US Bankruptcy Courts. Federal courts hear cases involving matters related to the United States Constitution, other federal laws and regulations, and certain matters that involve parties from different states or countries and large sums of money in dispute.

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Don’t Panic About the Supreme Court’s Right to Protest Ruling—Yet

The high court’s decision to leave a controversial lower court decision intact does not necessarily spell doom for first amendment rights..

The Supreme Court receives thousands of petitions for review each year. It agrees to hear only a handful of them. The rest are denied without any explanation whatsoever. Occasionally, however, one of the justices sheds some light on the court’s potential thinking about a particular case by writing a separate statement with the denial.

Justice Sonia Sotomayor did just that on Monday in Mckesson v. Doe, a potentially significant First Amendment case. The Fifth Circuit Court of Appeals held last year that the organizers of public protests are liable for civil damages for any illegal act committed by a protester, even if the organizer did not encourage or support it. The Supreme Court declined to review that ruling.

I noted in February that allowing the Fifth Circuit’s ruling to stand would seriously imperil the right to protest, at least within that court’s jurisdiction. It opens up protest organizers to serious financial damages through no fault of their own for engaging in constitutionally protected activities. But the court’s decision on Monday to not hear the case does not necessarily suggest that a status quo, to the detriment of some citizens’ First Amendment rights, will endure.

Instead, Sotomayor wrote, the Fifth Circuit may now have to reconsider its previous ruling based on Counterman v. Colorado, a First Amendment case that was decided by the high court last term. “Because this court may deny certiorari for many reasons, including that the law is not in need of further clarification, its denial today expresses no view about the merits of Mckesson ’s claim,” she wrote in a statement on the court’s decision. “Although the Fifth Circuit did not have the benefit of this Court’s recent decision in Counterman when it issued its opinion, the lower courts now do.”

The case itself comes from a lawsuit by an anonymous Louisiana police officer against Deray Mckesson, a prominent leader in the Black Lives Matter movement. In the summer of 2016, two Baton Rouge police officers shot and killed Alton Sterling, an unarmed Black man, outside a convenience store. Video of the killing went viral online amid a national reckoning with police violence against Black Americans.

Mckesson, who became a prominent figure in the BLM movement that year, organized a protest in Baton Rouge shortly after the killing. What began as a peaceful demonstration soon turned confrontational. According to the anonymous police officer, someone in the crowd threw a rock at him that caused serious injuries.

The officer filed a lawsuit against Mckesson and others for their alleged role in his injury. While Mckesson played no personal role in the rock-throwing, the officer argued that Mckesson was liable for his injuries because he had organized the protest and knew it could potentially turn violent. He claimed that Louisiana law allowed him to sue Mckesson for, among other things, negligence.

A federal district court dismissed those claims, citing the 1982 case NAACP v. Claiborne Hardware Store. In Claiborne, the Supreme Court held that the First Amendment barred civil lawsuits against nonviolent protest organizers. That restriction applied even if some protesters turned violent against individuals or destructive toward property.

The Fifth Circuit, however, overturned the lower court’s ruling and reinstated the negligence claim. In 2020, the Supreme Court summarily reversed the Fifth Circuit—meaning that it overturned the decision without holding arguments or further briefing—because the appeals court hadn’t asked the Louisiana Supreme Court to weigh in on how to interpret the state negligence law in question.

Once the Louisiana Supreme Court did so, a three-judge panel on the Fifth Circuit affirmed its previous ruling. In the 2–1 ruling, the majority tried to distinguish the police officer’s lawsuit from Claiborne on murky grounds, including by claiming that since violence had occurred during the protest, Mckesson should have known that it would be dangerous before he organized it.

One of the panel’s members, Judge Don Willett, dissented from the panel’s ruling by arguing that his colleagues were drawing unnecessary distinctions with Claiborne that ultimately avoided its entire framework. Claiborne, he wrote, made protest leaders liable for damages based on whether they had acted violently or nonviolently themselves. By invoking negligence, Willett noted, the plaintiff was merely transmuting nonviolent acts into violent ones.

Willett also pointed to the practical consequences of the court’s decision. Adopting the officer’s theory of negligence during the civil rights movement would have led to “ruinous financial liability” for its leaders. “Had Dr. [Martin Luther] King been sued, either by injured police or injured protestors, I cannot fathom that the Constitution he praised as ‘magnificent’—‘a promissory note to which every American was to fall heir’—would countenance his personal liability,” he wrote.

A few days after the Fifth Circuit’s decision last summer, the Supreme Court decided Counterman v. Colorado. That case involved a Colorado man named Billy Counterman who sent bizarre and threatening Facebook messages to a local singer, despite her repeated attempts to block him. The state eventually charged him under a statute that made it a crime to “repeatedly” send communications to someone that would cause that person “serious emotional distress.”

Counterman sought to overturn his conviction on First Amendment grounds, arguing that his remarks did not rise to the level of a “true threat.” While the First Amendment protects a wide range of speech, the courts have long held that “true threats of violence” do not fall under its scope. In their ruling, the justices affirmed that prosecutors must show that the defendant subjectively understood his statements to be threatening.

At the same time, the justices also held that a “mental state of recklessness” would be enough to meet that threshold. “[Colorado] must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” Justice Elena Kagan wrote for the 7–2 majority. “The State need not prove any more demanding form of subjective intent to threaten another.” Since Colorado prosecuted him under a different standard, the court ruled that it had violated the First Amendment.

Sending threatening Facebook messages does not appear to have much in common with organizing protests against police violence, at first glance. But both cases involve questions of how far the First Amendment goes to protect speech that is, shall we say, adjacent to the possibility of violence. In Counterman , the justices referred to Claiborne multiple times. Kagan, writing for the majority, cited Claiborne alongside other cases to note that the First Amendment “precludes punishment, whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

She also noted that, in incitement cases, the court has often recognized that “incitement to disorder is commonly a hair’s-breadth away from political ‘advocacy’—and particularly from strong protests against the government and prevailing social order,” again pointing to Claiborne. The court’s emphasis on an intent requirement in First Amendment cases would appear to doom the officer’s lawsuit against Mckesson, which hinges entirely on the lower standard of negligence.

It is notable that Sotomayor’s opinion is styled as a “statement” on the court’s decision not to hear the case, not as a “dissent.” That signals agreement or at least acceptance of the outcome instead of opposition to it. She noted that the district court and the Fifth Circuit would be bound by Counterman going forward no matter what. “I expect them to give full and fair consideration to arguments regarding Counterman ’s impact in any future proceedings in this case,” she pointedly concluded, referring to the lower courts. And if they don’t, the Supreme Court will have no choice but to correct them.

Matt Ford is a staff writer at The New Republic.

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Decade-long study shows Supreme Court is now further to the ideological right than most Americans

Reimagining Democracy Program

Cambridge, MA—As the Supreme Court is poised to hand down perhaps its most consequential raft of decisions in a generation, a new study published this week in the Proceedings of the National Academy of Sciences finds that since 2020, the court has become much more conservative than the American public at large. Leveraging a decade-long set of surveys that ask Americans about the exact issues before the court, Stephen Jessee from the University of Texas at Austin, Neil Malhotra from the Stanford Graduate School of Business, and Harvard Kennedy School’s Maya Sen demonstrate that the Supreme Court is now ideologically further to the right than roughly three quarters of Americans.

The authors’ research illustrates how new appointments over the last decade have corresponded with rightward shifts in the court’s ideology. The 2018 replacement of moderate conservative Justice Anthony Kennedy with the more conservative Brett Kavanaugh shifted the court’s politics strongly to the right. “In 2010, with Kennedy as the median, the court’s rulings put it in an ideological middle ground roughly halfway between Republicans and Democrats. In fact, the estimated ideological position of the court with Kennedy as the median falls almost exactly at the position of the average American.”

The October 2020 appointment of Amy Coney Barrett to fill the vacancy left by the death of Justice Ruth Bader Ginsburg resulted in the court’s ideology moving even further to the right, according to the authors. Though many believe that Chief Justice Roberts held the court’s moderate center together following Justice Kennedy’s retirement, Justice Barrett’s appointment signaled the end of the court’s centrism by increasing the size of the conservative voting bloc from 5 to 6 (out of 9). This has resulted in rulings that are more conservative than what most Americans prefer. “Indeed, by the time of our 2021 survey, the following April, the court is estimated to be significantly more conservative than the average American,” the authors write.

This sudden rightward shift, which now finds Justice Brett Kavanaugh occupying the court’s median ideological position, has led much of the public to underestimate the court’s conservative tilt. Democrats in particular, according to the survey data compiled by the authors, are “particularly likely to consistently underestimate the court’s conservative lean.” This underestimation of the court’s sharp turn to the right has significant consequences for the public’s support for Supreme Court reforms, such as term limits or the appointment of additional justices. “The fact that so many people currently underestimate how conservative the court is implies that support for proposed changes to the court may be weaker than it would be if people knew with greater accuracy the court’s conservative nature.”

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What to know about the Supreme Court case about immunity for former President Trump

The core issue being debated before the Supreme Court on Thursday boils down to whether a former president is immune from prosecution for actions taken while in office

WASHINGTON -- The Supreme Court has scheduled a special session to hear arguments over whether former President Donald Trump can be prosecuted over his efforts to undo his 2020 election loss to President Joe Biden .

The case, to be argued Thursday, stems from Trump's attempts to have charges against him dismissed. Lower courts have found he cannot claim for actions that, prosecutors say, illegally sought to interfere with the election results.

Trump has been charged in federal court in Washington with conspiring to overturn the 2020 election, one of four criminal cases he is facing. A trial has begun in New York over hush money payments to a porn star to cover up an alleged sexual encounter.

The Supreme Court is moving faster than usual in taking up the case, though not as quickly as special counsel Jack Smith wanted, raising questions about whether there will be time to hold a trial before the November election, if the justices agree with lower courts that Trump can be prosecuted.

The justices ruled earlier this term in another case that arose from Trump's actions following the election, culminating in the Jan. 6, 2021, attack on the U.S. Capitol. The court unanimously held that states could not invoke a provision of the 14th Amendment known as the insurrection clause to prevent Trump from appearing on presidential ballots.

Here are some things to know:

When the justices agreed on Feb. 28 to hear the case, they put the issue this way: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

That's a question the Supreme Court has never had to answer. Never before has a former president faced criminal charges so the court hasn't had occasion to take up the question of whether the president's unique role means he should be shielded from prosecution, even after he has left office.

Both sides point to the absence of previous prosecutions to undergird their arguments. Trump's lawyers told the court that presidents would lose their independence and be unable to function in office if they knew their actions in office could lead to criminal charges once their terms were over. Smith's team wrote that the lack of previous criminal charges “underscores the unprecedented nature” of what Trump is accused of.

Richard Nixon resigned the presidency in disgrace nearly 50 years ago rather than face impeachment by the House of Representatives and removal from office by the Senate in the Watergate scandal.

Both Trump's lawyers and Smith's team are invoking Nixon at the Supreme Court.

Trump's team cites Nixon v. Fitzgerald, a 1982 case in which the Supreme Court held by a 5-4 vote that former presidents cannot be sued in civil cases for their actions while in office. The case grew out of the firing of a civilian Air Force analyst who testified before Congress about cost overruns in the production of the C-5A transport plane.

“In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility,” Justice Lewis Powell wrote for the court.

But that decision recognized a difference between civil lawsuits and “the far weightier" enforcement of federal criminal laws, Smith's team told the court. They also invoked the high court decision that forced Nixon to turn over incriminating White House tapes for use in the prosecutions of his top aides.

And prosecutors also pointed to President Gerald Ford's pardon of Nixon, and Nixon's acceptance of it, as resting “on the understanding that the former President faced potential criminal liability.”

The subtext of the immunity fight is about timing. Trump has sought to push back the trial until after the election, when, if he were to regain the presidency, he could order the Justice Department to drop the case. Prosecutors have been pressing for a quick decision from the Supreme Court so that the clock can restart on trial preparations. It could take three months once the court acts before a trial actually starts.

If the court hands down its decision in late June, which would be the typical timeframe for a case argued so late in the court's term, there might not be enough time to start the trial before the election.

Trump is represented by D. John Sauer, a former Rhodes Scholar and Supreme Court clerk to Justice Antonin Scalia. While serving as Missouri’s solicitor general, Sauer won the only Supreme Court case he has argued until now, a 5-4 decision in an execution case. Sauer also filed legal briefs asking the Supreme Court to repudiate Biden's victory in 2020.

In addition to working for Scalia early in his legal career, Sauer also served as a law clerk to Michael Luttig when he was a Republican-appointed judge on the Richmond, Virginia-based federal appeals court. Luttig joined with other former government officials on a brief urging the Supreme Court to allow the prosecution to proceed. Luttig also advised Vice President Mike Pence not to succumb to pressure from Trump to reject some electoral votes, part of Trump's last-ditch plan to remain in office.

The justices are quite familiar with Sauer’s opponent, Michael Dreeben. As a longtime Justice Department official, Dreeben argued more than 100 cases at the court, many of them related to criminal law. Dreeben was part of special counsel Robert Mueller's investigation of Russian interference in the 2016 election and joined Smith's team last year after a stint in private practice.

In Dreeben's very first Supreme Court case 35 years ago, he faced off against Chief Justice John Roberts, then a lawyer in private practice.

Of the nine justices hearing the case, three were nominated by Trump — Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh. But it's the presence of a justice confirmed decades before Trump's presidency, Justice Clarence Thomas, that's generated the most controversy.

Thomas's wife, Ginni Thomas, urged the reversal of the 2020 election results and then attended the rally that preceded the Capitol riot. That has prompted calls for the justice to step aside from several court cases involving Trump and Jan. 6.

But Thomas has ignored the calls, taking part in the unanimous court decision that found states cannot kick Trump off the ballot as well as last week's arguments over whether prosecutors can use a particular obstruction charge against Capitol riot defendants. Trump faces the same charge in special counsel Jack Smith's prosecution in Washington.

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Facts and Case Summary - Tinker v. Des Moines

Decision Date : February 24, 1969

At a public school in Des Moines, Iowa, students planned to wear black armbands at school as a silent protest against the Vietnam War.

When the principal became aware of the plan, he warned the students that they would be suspended if they wore the armbands to school because the protest might cause a disruption in the learning environment. Despite the warning, some students wore the armbands and were suspended.

During their suspension, the students' parents sued the school for violating their children's right to free speech. The U.S. District Court for the Southern District of Iowa sided with the school’s position, ruling that wearing the armbands could disrupt learning.

The students appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit but lost and took the case to the Supreme Court of the United States.

Decision and Reasoning

In a 7-2 decision, the Supreme Court’s majority ruled that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court took the position that school officials could not prohibit only on the suspicion that the speech might disrupt the learning environment.

The dissent argued that the First Amendment does not grant the right to express any opinion at any time. Students attend school to learn, not teach. The armbands were a distraction. School officials, acting on a legitimate interest in school order, should have broad authority to maintain a productive learning environment.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.

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The Supreme Court case that could turn homelessness into a crime, explained

T he Supreme Court will hear a case later this month that could make life drastically worse for homeless Americans. It also challenges one of the most foundational principles of American criminal law — the rule that someone may not be charged with a crime simply because of who they are.

Six years ago, a federal appeals court held that the Constitution “bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Under the United States Court of Appeals for the Ninth Circuit’s decision in Martin v. Boise , people without permanent shelter could no longer be arrested simply because they are homeless, at least in the nine western states presided over by the Ninth Circuit.

As my colleague Rachel Cohen wrote about a year ago , “much of the fight about how to address homelessness today is, at this point, a fight about Martin .” Dozens of court cases have cited this decision, including federal courts in Virginia, Ohio, Missouri, Florida, Texas, and New York — none of which are in the Ninth Circuit.

Some of the decisions applying Martin have led very prominent Democrats, and institutions led by Democrats, to call upon the Supreme Court to intervene. Both the city of San Francisco and California Gov. Gavin Newsom , for example, filed briefs in that Court complaining about a fairly recent decision that, the city’s brief claims, prevents it from clearing out encampments that “present often-intractable health, safety, and welfare challenges for both the City and the public at large.”

On April 22, the justices will hear oral arguments in City of Grants Pass v. Johnson , one of the many decisions applying Martin — and, at least according to many of its critics, expanding that decision.

Martin arose out of the Supreme Court’s decision in Robinson v. California (1962), which struck down a California law making it a crime to “be addicted to the use of narcotics.” Likening this law to one making “it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease,” the Court held that the law may not criminalize someone’s “status” as a person with addiction and must instead target some kind of criminal “act.”

Thus, a state may punish “a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration.” But, absent any evidence that a suspect actually used illegal drugs within the state of California, the state could not punish someone simply for existing while addicted to a drug.

The Grants Pass case does not involve an explicit ban on existing while homeless, but the Ninth Circuit determined that the city of Grants Pass, Oregon, imposed such tight restrictions on anyone attempting to sleep outdoors that it amounted to an effective ban on being homeless within city limits.

There are very strong arguments that the Ninth Circuit’s Grants Pass decision went too far. As the Biden administration says in its brief to the justices, the Ninth Circuit’s opinion did not adequately distinguish between people facing “involuntary” homelessness and individuals who may have viable housing options. This error likely violates a federal civil procedure rule , which governs when multiple parties with similar legal claims can join together in the same lawsuit.

But the city, somewhat bizarrely, does not raise this error with the Supreme Court. Instead, the city spends the bulk of its brief challenging one of Robinson’ s fundamental assumptions: that the Constitution’s ban on “ cruel and unusual punishments ” limits the government’s ability to “determine what conduct should be a crime.” So the Supreme Court could use this case as a vehicle to overrule Robinson.

That outcome is unlikely, but it would be catastrophic for civil liberties. If the law can criminalize status, rather than only acts, that would mean someone could be arrested for having a disease. A rich community might ban people who do not have a high enough income or net worth from entering it. A state could prohibit anyone with a felony conviction from entering its borders, even if that individual has already served their sentence. It could even potentially target thought crimes.

Imagine, for example, that an individual is suspected of being sexually attracted to children but has never acted on such urges. A state could potentially subject this individual to an intrusive police investigation of their own thoughts, based on the mere suspicion that they are a pedophile.

A more likely outcome, however, is that the Court will drastically roll back Martin or even repudiate it altogether. The Court has long warned that the judiciary is ill suited to solve many problems arising out of poverty . And the current slate of justices is more conservative than any Court since the 1930s.

Grants Pass’s litigation strategy is bizarre

One reason why this already difficult case is being needlessly complicated is that Grants Pass made some odd strategic decisions when it brought this case to the Supreme Court. While the city’s primary argument seems to attack one of the fundamental principles of American criminal law, there is probably much less to this argument than an initial read of their brief would suggest.

Robinson was an Eighth Amendment decision. It held that this amendment, which prohibits “ cruel and unusual punishments ,” does not permit the government to punish mere “status.” Instead, as mentioned, criminal laws must target some “act” committed by a defendant.

The city’s primary argument is that Robinson erred in this decision. The Eighth Amendment, it claims, “ focuses not on the nature of a criminal offense, but the sentence imposed for it .” So, under this approach, California did not violate the Eighth Amendment in 1962 when it made merely existing while experiencing addiction a crime, so long as it was not imposing an excessive sentence on that addiction. Similarly, the amendment would forbid Grants Pass from imposing the death penalty on homeless people — because such a harsh punishment would be excessive — but it wouldn’t forbid a city from making existing while homeless a crime.

On the surface, this is an extremely consequential argument. If the Supreme Court should agree that mere status can be criminalized, that would open the door to thought crimes and allow states and localities to effectively banish entire classes of people they deem undesirable.

But there is probably less to this argument than it initially seems. As the city notes in its brief , some scholars argue that even if being arrested for a status crime does not violate the Eighth Amendment, it does violate two other provisions of the Constitution, which forbid the government from denying “ life, liberty, or property, without due process of law .” So even if a majority of the current justices agreed that Robinson misread the Eighth Amendment, that doesn’t necessarily mean that the government can criminalize status.

Moreover, the idea that government may only punish voluntary actions, and not status, is hardly some newfangled idea invented by liberal justices in the 1960s. It has deep roots in the common law, the body of judge-made law that developed in English courts over many hundreds of years and that still shapes much of US law. In their brief, the unhoused plaintiffs quote a 1754 lecture by an English legal scholar who said that “no action can be criminal, if it is not possible for a man to do otherwise . An unavoidable crime is a contradiction.”

There’s even a Latin term, “ actus reus ,” that refers to the criminal act that someone typically must commit before they are charged with a crime. This is one of the most basic concepts in American criminal law. Virtually any law student who has completed the first week of their introductory course in criminal law will be familiar with this term.

So, while it is theoretically possible that the current Supreme Court could eliminate the requirement that someone commit an actus reus before they can be criminally punished, that seems unlikely. This is such a foundational principle in US criminal law that even this Court is unlikely to disturb it.

The line between “status” and “action” is often blurry

Yet while the Court is unlikely to say that people can be declared criminals simply because of who they are, the line between what constitutes a law criminalizing “status” and a law criminalizing action can be quite blurry at the margins.

Consider Powell v. Texas (1968), which asked whether an alcoholic who claimed to have an irresistible urge to drink could be charged with a crime for being drunk in public. Leroy Powell, the defendant in this case, claimed that arresting him for being drunk was no different than arresting someone addicted to drugs simply for being addicted, because his drunkenness was an unavoidable consequence of his status as someone with alcoholism.

The Court, however, rejected this argument — albeit in a close 5–4 decision.

Writing for himself and only three other justices, Justice Thurgood Marshall wrote the Court’s lead opinion in Powell . That opinion leaned heavily into Marshall’s doubts that Powell’s alcoholism was a truly an “irresistible compulsion to drink and to get drunk in public” that was so strong he was “utterly unable to control” his drinking.

Justice Byron White, meanwhile, cast the fifth vote against Powell but did not join Marshall’s opinion. Citing Robinson , White argued that “if it cannot be a crime to have an irresistible compulsion to use narcotics,” then “I do not see how it can constitutionally be a crime to yield to such a compulsion.” He also wrote that “the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or for being drunk.”

Ultimately, White voted against Powell because Powell was convicted of public drunkenness — the justice reasoned that, even if Powell could not avoid drinking, he could have remained at home. But White’s approach has fairly obvious implications for the Grants Pass case.

That case involves a web of local ordinances that, the Ninth Circuit determined, punish homelessness in much the same way that a ban on drinking punishes an alcoholic who genuinely is incapable of not drinking. Among other things, these ordinances include strict limits on where people can sleep and prohibit anyone from using “material used for bedding purposes” on public property — a provision that, the city claims, permits it to cite anyone who so much as wraps themselves in a blanket while sitting on a park bench.

Violators face a fine of at least $180, an enormous amount for someone who cannot afford housing, and the penalties escalate quite quickly for repeat offenders.

Because everyone has to sleep eventually, and because Grants Pass is too cold in the winter for anyone to sleep outside without a blanket or similar protection, the Ninth Circuit reasoned that Grants Pass’s web of ordinances effectively makes it impossible to live while homeless in Grants Pass — thus criminalizing the status of being homeless.

One way that the Supreme Court could resolve this case is to reject White’s conclusion in Powell that there is no difference between a law that criminalizes status directly and one that does so indirectly by criminalizing an involuntary act that arises out of their status. That would be a huge blow to unhoused people, as it would fundamentally undermine the Martin decision.

Even under White’s framework, moreover, Robinson only protects individuals who have an “irresistible compulsion” to drink alcohol. It follows that Robinson should only protect people who cannot voluntarily sleep anywhere except for places where Grants Pass’s ordinances effectively forbid them from sleeping.

And this distinction between voluntary and involuntary action presents the biggest problem for the unhoused plaintiffs in Grants Pass .

The biggest problem with the Ninth Circuit’s decision, briefly explained

The Ninth Circuit determined that people are protected by Robinson only if they are “involuntarily homeless,” a term it defined to describe people who “do not ‘have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free.’” But, how, exactly, are Grants Pass police supposed to determine whether an individual they find wrapping themselves in a blanket on a park bench is “involuntarily homeless”?

For that matter, what exactly does the word “involuntarily” mean in this context? If a gay teenager runs away from home because his conservative religious parents abuse him and force him to attend conversion therapy sessions, is this teenager’s homelessness voluntary or involuntary? What about a woman who flees her violent husband? Or a person who is unable to keep a job after they become addicted to opioids that were originally prescribed to treat their medical condition?

Suppose that a homeless person could stay at a nearby shelter, but they refuse because another shelter resident violently assaulted them when they stayed there in the past? Or because a laptop that they need to find and keep work was stolen there? What if a mother is allowed to stay at a nearby shelter, but she must abandon her children to do so? What if she must abandon a beloved pet?

The point is that there is no clear line between voluntary and involuntary actions, and each of these questions would have to be litigated to determine whether Robinson applied to an individual’s very specific case. But that’s not what the Ninth Circuit did. Instead, it ruled that Grants Pass cannot enforce its ordinances against “involuntarily homeless” people as a class without doing the difficult work of determining who belongs to this class.

That’s not allowed. While the Federal Rules of Civil Procedure sometimes allow a court to provide relief to a class of individuals, courts may only do so when “ there are questions of law or fact common to the class ,” and when resolving the claims of a few members of the class would also resolve the entire group’s claims.

But that’s not true in Grants Pass . A case involving a queer teen who fled his parents’ home is materially distinct from a case involving a woman who sleeps outside because she cannot find a shelter that will allow her to bring her dog. That does not mean that both of these individuals should not prevail in court. But the Federal Rules of Civil Procedure require them to bring separate legal proceedings that can address the unique facts of their unique cases.

The courts probably aren’t going to provide much help to homeless people in the long run

Grants Pass is hardly the first time the courts have been asked to intervene in a complicated question of anti-poverty policy. The best-known example is probably San Antonio Independent School District v. Rodriguez (1973), which challenged a public school funding scheme in Texas that tended to provide much more money to wealthy school districts than to poorer ones. The Court turned away this suit in a 5–4 decision.

In the decades after Rodriguez , however, many state supreme courts broke with their federal counterparts and ordered their states to spend more on education, to provide more resources to poor districts, or to otherwise implement a more equitable finance system. As of 2019, plaintiffs bringing Rodriguez -like suits in state courts had prevailed in 23 states .

But these cases are difficult to litigate and often require multiple trips to the state supreme court over the course of many years. Frequently, after a state supreme court issues a decision calling for some change in the state’s funding scheme, the legislature makes some small changes and then drops the issue until a court orders them to act again.

In Arkansas, for example, school finance reformers won a state supreme court victory in 1983 declaring that the state’s school finance system bore “no rational relationship to the educational needs of the individual districts” and then had to return to court nearly two decades later . Seventeen years after its initial decision, the Arkansas Supreme Court found that the wealthiest school districts were still spending nearly twice as much per pupil as the poorest districts .

Even if Martin survives contact with the Supreme Court, anti-poverty advocates are likely to face even more difficulties trying to wield it to mitigate the problem of homelessness than those same advocates have faced in school finance cases. Because the law restricts when courts can provide class-wide relief to anyone experiencing homelessness (or even to “involuntarily homeless” people), enforcing Martin is likely to become a long, slow slog of individual cases attempting to rescue individual criminal defendants from an individual arrest for sleeping outside.

Of course, the courts could relax the rules governing when judges can provide class-wide relief. But such a relaxation would have implications far beyond homelessness policy and would likely do far more to empower the judiciary’s far right than it would to help anti-poverty advocates.

Imagine, for example, what Matthew Kacsmaryk , the Trump-appointed judge who tried to ban the abortion drug mifepristone and who routinely hands down court orders implementing right-wing policy preferences, would do if he were handed a new power to issue class-wide relief to any group of people he wants to help out.

So, with so many ways that Grants Pass could end very badly for homeless people — and for criminal defendants generally — the case is unlikely to end well for them.

Supreme Case Study: Unraveling the Brand’s Success Strategy

• Written by 440 Industries
• June 30, 2023

Picture this: a small skateboarding shop in downtown Manhattan, circa 1994. Little did anyone know that it would evolve into the global fashion icon we now recognize as Supreme. In our supreme case study , we’ll explore the brand’s fascinating journey to success.

What started as founder James Jebbia’s vision for an authentic skateboarding brand has become a phenomenon that transcends its humble beginnings. This supreme case study will delve into key factors contributing to its meteoric rise, such as their scarcity model and strategic collaborations with artists and brands.

We’ll also examine how word-of-mouth promotion and social media marketing tactics have played pivotal roles in establishing Supreme’s loyal following. Finally, get ready to be inspired by some of the most ingenious guerrilla marketing techniques employed by this powerhouse brand.

Let’s dive into this fascinating journey of Supreme and its impact on the streetwear culture – an exploration you won’t want to miss!

Table of Contents:

Early days of the brand, iconic red box logo, collaborations with artists and brands, word-of-mouth promotion: the power of authenticity, social media marketing strategies: the supreme way, guerrilla tactics for customer engagement, setting trends in streetwear, influence on other brands’ marketing approaches, what are examples of supreme court cases, what articles discuss the supreme court, what 3 supreme court cases do you feel are the most important, what is an example of a famous controversial supreme court case, the origins of supreme: a skateboarding shop turned fashion phenomenon.

Let’s go back in time to 1994 when the roots of Supreme were planted.

In 1994, James Jebbia planted the seeds for what would become one of the most iconic fashion brands in history – Supreme.

Starting as a skateboarding shop and clothing brand in New York City, Supreme quickly captured the hearts (and wallets) of streetwear enthusiasts worldwide.

The birthplace? Lafayette Street in downtown Manhattan.

Here, Supreme began catering to skaters and creatives alike with its unique blend of functional design and urban aesthetic.

A simple yet powerful symbol was born – the red box logo with white Futura Heavy Oblique font.

This emblem not only represented an emerging subculture but also became synonymous with exclusivity and style among youth culture aficionados across generations.

<.– seo keyword>

Interestingly, the name “Supreme” was inspired by the Supreme Court, as Jebbia admired the institution’s power and authority. However, the brand’s success has far surpassed that of its namesake.

Scarcity Model Strategy: The Key to Supreme’s Success

To truly understand the success of Supreme, we must first explore their scarcity model strategy and how it has contributed to the brand’s popularity among fashion and lifestyle enthusiasts.

So, what exactly is this scarcity model?

Well, it’s quite simple. Supreme releases a limited quantity of their products, creating a sense of exclusivity and urgency among their audience. This scarcity model has proven to be incredibly effective, as it not only drives up demand but also creates a sense of hype around each release.

But how did Supreme come up with this strategy?

Interestingly enough, the idea was inspired by the Supreme Court . James Jebbia, the founder of Supreme, was fascinated by the way the Supreme Court operated and how their decisions were highly anticipated and closely followed. He wanted to create a similar sense of anticipation and exclusivity around his brand.

And it’s safe to say that he succeeded. Fans eagerly await the release of Supreme’s newest drops, often queuing up for hours to get their hands on the coveted items.

So, what can we learn from Supreme’s scarcity model strategy?

• Creating a sense of exclusivity and urgency can drive up demand for your products.
• Building hype around each release can help generate buzz and increase brand awareness.
• Studying successful models from other industries, such as the Supreme Court , can inspire innovative ideas for your own brand.

Overall, Supreme’s scarcity model strategy has been a key factor in their success. By creating a sense of exclusivity and hype around each release, they have built a loyal following of fashion and lifestyle enthusiasts who can’t get enough of their products.

Key Takeaway: 

Supreme’s success can be attributed to their scarcity model strategy, which involves releasing limited quantities of products to create exclusivity and urgency among customers. This has helped generate hype around each release and increase brand awareness, making Supreme one of the most sought-after streetwear brands in the world. By studying successful models from other industries, such as the Supreme Court, businesses can gain inspiration for innovative ideas that drive demand for their own products.

Supreme’s genius lies in its ability to stay fresh and relevant. But how do they do it? By teaming up with a diverse range of artists and brands that resonate with their target audience. By leveraging the connection between music and fashion, Supreme has been able to expand its reach and increase its desirability.

Music Industry Collaborations

The music world has always been a great source of style influence, so it makes sense for Supreme to capitalize on this. They have collaborated with hip-hop legends like Nas and rock icons like The Misfits, resulting in some seriously sought-after merchandise.

Art World Partnerships

Fashion is art, right? So it should come as no surprise that Supreme has partnered with renowned artists such as Takashi Murakami and Jeff Koons . The result? Unique pieces that blur the line between clothing and collectible artwork.

Sports Apparel Alliances

In order to appeal to sports enthusiasts, Supreme strategically collaborates with popular athletic wear companies. Some of their most notable partnerships include those with Nike, Vans, and even the iconic NBA. These collaborations have resulted in exclusive, limited-edition sneakers and apparel that are highly coveted by fans.

Let’s face it, in today’s world, consumers are bombarded with advertisements everywhere they look. However, 440 Industries’ client, Supreme, decided to take a different approach and focus on word-of-mouth promotion, which is a powerful way to grow organically while maintaining an authentic image in today’s competitive market.

The reason behind Supreme’s strategy is simple. By avoiding traditional advertising channels like print media or television commercials, Supreme ensures that their image remains untainted by mass-market exposure. This is where the magic happens:

• Importance of customer testimonials: People trust recommendations from friends and family more than any advertisement. By focusing on word-of-mouth promotion, Supreme taps into this powerful form of marketing.
• Building an authentic image: When customers share their love for the brand organically, it helps create a genuine perception in the minds of potential buyers. This ultimately leads to increased loyalty and long-term success for Supreme.

To make things even better, Supreme has mastered the art of creating hype around its products without diluting its core values. By engaging with their audience through social media, grassroots events, and collaborations with influential artists and brands, Supreme not only maintains its authenticity but also keeps its loyal fan base excited for each new product release.

Gaining a genuine rapport with your consumers and allowing them to promote your label can be an effective way of organically growing, whilst still keeping up a legitimate image in today’s cutthroat industry. If you’re passionate about fashion and lifestyle, take a page from Supreme’s book and consider implementing a word-of-mouth promotion strategy for your brand.

Let’s dive into the world of social media marketing, Supreme style.

Supreme has mastered the art of using Instagram to create buzz around their upcoming drops.

Their secret sauce? Celebrity endorsements.

By leveraging social media and tapping into the impact of star power, Supreme has managed to construct a buzz-generating engine that keeps fans captivated and eagerly awaiting each new launch.

Now it’s your turn to take these strategies and make them work for your brand.

Supreme has mastered the art of guerrilla marketing tactics to create a strong connection with its customers. Curious about how they do it? Let me break it down for you:

Grassroots Level Events:

The brand engages directly with its audience by participating in events like concerts and skateboarding competitions. For example, Highsnobiety reported on Supreme’s collaboration with legendary skateboarder Mark Gonzales at an underground event.

Building Loyalty Through Face-to-Face Interactions:

By being present at these grassroots events, Supreme representatives can interact face-to-face with potential buyers. This helps build personal connections that foster loyalty towards the brand.

The Supreme Court’s Impact on the Fashion Industry

The Supreme Court’s influence on the fashion industry is undeniable, and we can explore how they achieved it.

This iconic brand has left a lasting impression on the fashion industry, thanks to its unique marketing strategies and streetwear influence.

Curious how they did it?

First off, Supreme has been a trendsetter since day one.

Their limited releases and exclusive collaborations have made their products highly sought-after by streetwear enthusiasts around the globe.

In fact, many brands now emulate this scarcity model to create hype for their own product launches.

Moving beyond street style , Supreme has also impacted other brands’ marketing tactics.

Other companies are attempting to imitate Supreme’s method of utilizing word-of-mouth marketing, in order to maintain a sense of credibility without depending too much on standard promotion techniques like TV spots or magazine ads.

440 Industries, for example, highlights how Supreme’s approach is reshaping retail as we know it.

FAQs in Relation to Supreme Case Study

Some notable Supreme Court cases include Marbury v. Madison , which established judicial review; Brown v. Board of Education , which declared racial segregation in public schools unconstitutional; and Roe v. Wade , which recognized a woman’s right to abortion under the constitutional right to privacy.

The following articles provide insights into various aspects of the U.S. Supreme Court:

• TIME Magazine’s coverage on the Supreme Court
• Associated Press’ collection on recent court decisions and news
• SCOTUSblog, an independent blog covering court opinions, orders, and more

In my opinion, three crucial Supreme Court cases are:

• Brown v. Board of Education (1954) : Ended racial segregation in public schools.
• Roe v. Wade (1973) : Established a woman’s legal right to have an abortion.
• Obergefell v. Hodges (2015) : Legalized same-sex marriage across the United States.

A well-known controversial Supreme Court case is Bush v. Gore (2000) , which effectively decided the outcome of the 2000 U.S. presidential election by stopping Florida’s recount process, ultimately awarding George W. Bush the presidency over Al Gore.

Supreme case study has shown that a unique vision, scarcity model, collaborations with artists and brands, word-of-mouth promotion strategy, social media marketing tactics, and guerrilla marketing techniques have all contributed to the brand’s success. Founder James Jebbia’s vision for Supreme as a skateboarding shop has evolved into a global fashion icon through exclusive limited edition releases.

The brand’s collaborations with notable artists and brands have expanded its target audience while building trust within niche communities. Social media marketing tactics, such as celebrity endorsements on Instagram, have also helped promote products to new audiences. Additionally, successful guerrilla marketing campaigns have built loyalty through direct customer engagement.

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America’s Fifth Circuit Problem

Judges are now fighting over the right to hear important policy cases.

by Hassan Ali Kanu

April 15, 2024

Jonathan Bachman/AP Photo

The Fifth Circuit Court of Appeals is part of a judicial pipeline that fast-tracks right-wing rulings to the Supreme Court—and creates endless delays for policies that protect and benefit the public.

Corporate America and conservative activists agree: We live in the United States of Texas, Louisiana & Mississippi.

These states have increasingly played host to major federal lawsuits implicating national policy, primarily in the Northern District of Texas, where certain divisions have just one or two judges, appointed by Republican presidents. The Amarillo division, for example, is only assigned one judge, and so cases there flow unilaterally to ultraconservative Donald Trump appointee and anti-abortion activist Matthew Kacsmaryk. In the Fort Worth division, you get a choice of two judges: George W. Bush appointee Reed O’Connor, or Trump judge Mark Pittman.

All of these judges are reliable champions for a radically conservative vision of the law. When their rulings are appealed, they end up at the just-as-conservative Fifth Circuit, also stacked with partisan ideologues. This has generated a pipeline that fast-tracks right-wing rulings to the Supreme Court—and creates endless delays for policies that protect and benefit the public.

More from Hassan Ali Kanu

The underlying strategy is known as judge shopping, and it’s key to the right-wing project to politicize and capture the judiciary in order to forcefully enact unpopular policy priorities. According to the public interest group Accountable.US , since January 2017, 63 percent of all U.S. Chamber of Commerce lawsuits challenging federal regulations have been filed at district courts within the Fifth Circuit’s boundaries.

The Fifth Circuit is apparently doubling down even as backlash mounts, essentially litigating against other federal courts and even some of its own circuit colleagues over the right to hear high-stakes, politically charged cases. It’s an unprecedented development that highlights the broader question of what can be done about partisan, rogue judges operating in service to raw power.

ON APRIL 5, REPUBLICAN-APPOINTED FIFTH CIRCUIT JUDGES issued an extraordinary order to Judge Pittman in a lawsuit involving the Consumer Financial Protection Bureau’s effort to cap late fees for credit card issuers. The U.S. Chamber of Commerce and various bank lobbying groups sued to block the cap from taking effect.

Despite his usual ideological approach, Pittman had transferred the Chamber’s case to the federal district court in D.C. a week earlier, explaining that the dispute didn’t have any substantial connections to the Fort Worth area. On the other hand, Pittman explained, the rule was developed in D.C., by agencies and employees stationed there, and most of the plaintiff organizations and their lawyers are also based in D.C.

That ruling implicitly acknowledged broad criticism of judge shopping within the Fifth Circuit.

And Pittman’s ruling seemed technically unassailable: Such a transfer can only be overturned if it’s an abuse of discretion and “patently erroneous”—where the lower court can’t even offer a coherent explanation, in other words. And that basically never happens.

“Everybody has known forever that once a case is transferred out there’s nothing you can do about it,” said David Coale, an appellate lawyer at Lynn Pinker Hurst & Schwegmann in Dallas.

But that didn’t matter to the Fifth Circuit. A majority of the Republican-appointed appellate judges asked Pittman last week to request a retransfer of the case from D.C. back to Texas.

The Fifth Circuit may have stretched even the bounds of its own lawful authority in order to do so, as the dissenting judge effectively conceded. The “new proposition of law created by the majority is incompatible with district court discretion over [its own] docket management and prudent policing of forum shopping,” Judge Stephen Higginson wrote.

Historically, judge shopping has been universally condemned, for the obvious reasons that it erodes impartiality and denigrates the public’s trust in the courts.

Moreover, Judge Don Willett, part of the appellate panel, holds significant amounts of stock in Citigroup , which could benefit from a ruling blocking the late fee cap. (He’s not even the first judge involved in the case found to have credit card company stock holdings .) Willett asked for briefings from both sides of the case on whether he should recuse. Yet the Chamber argued that Willett should not recuse because the case “would have limited effect on the bottom line of issuers”—which makes you wonder why they’re bothering to sue to begin with.

Unfortunately, the Fifth Circuit’s aggressive moves to retain jurisdiction have already succeeded. Judge Amy Berman Jackson, who received the CFPB case from Judge Pittman, terminated the case in the D.C. district court, effectively sending it back to Texas. Judge Jackson did say in her defense that “the Court is not inclined to ‘disregard’ a case on its docket, and it has considerable discretion to supervise its own cases.” But she then used that discretion to simply transfer a case that was rightfully in her court to another, much less appropriate venue, explaining only that the district court in Texas had docketed the case. (If it isn’t obvious, Jackson’s own court had also formally accepted and placed the case on its docket.)

In short, Jackson saved the Fifth Circuit the embarrassment of having a case wrested away—an extremely rare situation that played out in 2022, when a district judge in New Jersey refused to retransfer a case about the legality of instructions for 3D-printed guns back to the ultraconservative circuit.

Incredibly, the Fifth Circuit is embroiled in a number of other ongoing venue fights. A suit filed by Elon Musk’s SpaceX, challenging the constitutionality of the National Labor Relations Board, was transferred to a district court in California by district court judge Rolando Olvera, a rare Obama appointee in Texas. The Fifth Circuit hasn’t let go of the case, even after a three-judge panel initially denied SpaceX’s request to take it back to Texas. A different Texas judge dismissed a case involving the pharmaceutical industry’s challenge of the Inflation Reduction Act’s law allowing Medicare to negotiate drug prices, due to improper venue. But the Fifth Circuit is hearing an appeal to that dismissal, hanging on to the case, with oral arguments scheduled for the end of the month.

Historically, judge shopping has been universally condemned, for the obvious reasons that it erodes impartiality and denigrates the public’s trust in the courts. That consensus includes the Supreme Court; the Biden administration; Congress; the American Bar Association; and virtually every legal scholar that has studied the issue. Chief Justice John Roberts endorsed random assignment of cases in his 2021 annual report on the federal courts.

But now, the judges most implicated in judge shopping are openly embracing the practice, potentially even overstepping their authority in order to carry business groups’ water. Even worse, they have the full support of the Republican Party leadership.

LAST MONTH, REPUBLICAN LEADERS IN CONGRESS PUBLICLY URGED appellate judges around the country to resist adopting rules that would prevent judge shopping, contradicting recent guidelines issued by the Judicial Conference, which governs the federal judiciary. Those guidelines would strengthen procedures for randomly assigning cases of national importance to judges—largely an attempt to address the gamesmanship at the Fifth Circuit.

The move should have been entirely uncontroversial, but it met fierce resistance from Republicans like Sen. Mitch McConnell (R-KY), one of the prime architects of the right-wing takeover of the courts. McConnell and his allies have urged chief judges across the country not to change their case assignment practices. And some of the more strident conservative judges in the country joined in, making highly unusual public statements criticizing the Judicial Conference’s policy, and suggesting they would in fact do nothing to address judge shopping.

“The Republican Party has turned into a pro–judge shopping lobby,” said Paul Gugliuzza, a professor at Temple University Beasley School of Law who has studied the issue. “Until a few weeks ago, the idea that one party shouldn’t get to pick the individual judges that hear their cases was a principle you didn’t even have to defend.”

The cracks in the consensus around judge shopping have been enabled largely by the same Republican politicians who have led their party’s movement to appoint ideologues and conservative partisans, rather than good-faith actors, to the federal courts. Of course, a number of those judges now sit on the U.S. Supreme Court, which shares much of the responsibility here.

The decision to do something about judge shopping is entirely a matter of judicial will.

The Judicial Conference operates as a network of committees, led by the chief judges of all the federal circuit courts and headed by Roberts, who is officially the “Chief Justice of the United States,” not just the Supreme Court. Roberts has sole authority to make appointments to the conference committees and to summon it into session; and very broad authority in deciding what they will consider. The Supreme Court could also take the Chamber’s case and settle these venue issues with a ruling that all courts would be bound to respect.

The decision to do something about judge shopping, in short, is entirely a matter of judicial will—and the buck stops with the chief judges and chief justice.

It’s also important to consider the example set by the highest court in the land.

The Supreme Court itself has been dealing with a legitimacy crisis fueled by apparent partisanship, including moves that raise the very same questions about impartiality that have arisen in the Fifth Circuit.

Yet the justices responded by enacting a toothless code of conduct—the Court’s first-ever—last November; and Newsweek reported on Tuesday that the Court’s conservatives continue to refuse to disclose why they decide to sit out certain cases, even though their liberal colleagues have begun citing the specific reasons for their recusals.

THE POWER DYNAMICS ON DISPLAY SHOW THE DEGREE to which the courts have become just another venue for politics and not an impartial venue for interpreting the law. McConnell and other Republicans ended the long-standing practice of vetting judges’ fitness via the so-called blue-slip policy—which allows home-state senators to block a judge they disfavor—and through ratings from the American Bar Association, focusing instead on their approval by the Federalist Society and the Heritage Foundation.

Those moves have meant that many appointees who would never have been considered before Trump’s presidency are now on the bench, regularly deciding policies of national importance, and enjoying lifetime tenure. Democrats have failed to return serve, meaning that Republican politicians can blue-slip any judge in courts representing their states. This creates a one-way ratchet: Courts like the Fifth Circuit can get more conservative, but never more liberal.

Democrats are keen to fight back against this perversion of the courts, starting with judge shopping. Senate Majority Leader Chuck Schumer (D-NY) recently filed a short bill called the End Judge Shopping Act, which would also mandate random assignment across an entire judicial district, rather than targeted to a particular division.

But McConnell filed his own bill , the Stop Helping Outcome Preferences (SHOP) Act, which claims to be aimed at “preventing” judge shopping, but conveniently leaves out the core of the problem—the practice of flocking to particular courts or judges to file cases of national importance. The election in November could go a long way to determining which vision of judge shopping reform, if any, gets enacted.

Against that backdrop, the breakdown of the consensus on judge shopping, even among judges, is perhaps not so surprising. The Republican Party has made clear that it supports partisanship above all.

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