On today’s episode of the 5 Things podcast:
The Supreme Court receives about 10,000 petitions a year. With so many important issues out there, which cases actually make it before the nine Justices? Is there a way to lobby them to listen? What is the method they use in choosing which cases they will here and which ones they won’t? The team at 5 Things sat down with USA TODAY’s Supreme Court reporter John Fritze to talk about the process to get a case heard before the high court.
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James Brown: Hello, and welcome to Five Things. I’m James Brown. It’s Sunday, June 26th, 2022. On Sundays we do things a bit differently, focusing on one topic instead of five. In this week, we’re headed to Washington DC.
Speaker 2: …I think marks off justice, Thomas, how problematic and unusual and how much of a break the court’s abortion jurisprudence is from those other cases.
Speaker 3: If we don’t overrule Casey or Roe, do you have a standard that you propose other than the viability standard?
Speaker 2: It would be, your honor-
James Brown: We’re hearing some of the oral arguments in one of the biggest Supreme Court cases in decades, Dobbs v Jackson.
Speaker 2: No standard, other than the rational basis of-
James Brown: Review a case on the constitutionality of a Mississippi law that bans most abortions after 15 weeks of pregnancy.
Speaker 2: …puts matters back with the people. I think anything heightened here is going to be-
James Brown: On Friday, the court voted six to three in support of that law.
Speaker 2: …to overrule Casey. The choice would be-
James Brown: That means it’s up to each state to decide the legality of abortion. This is one of a series of decisions with wide ramifications expected before the end of the month.
Speaker 4: Thank you, general. Council, the case is submitted.
James Brown: And that got us thinking, how did these cases get to the Supreme Court in the first place? To get some perspective on this we turn to John Fritze, who covers the Supreme Court for USA Today. John Fritze, welcome to Five Things.
John Fritze: Hey, thanks for having me!
James Brown: I want to start with a scenario, if you don’t mind. It’s a hypothetical. Let’s say my state government decides they want to do something that I think is stupid. I disagree for political or religious or moral or business reasons. I protest, and a lot of people agree with me.
Others think I’m nuts. Either way, the state doesn’t listen. They pass a bill that was signed into law. I sue and yada, yada, yada, it ends up at the Supreme Court. Help me out, John. In a case like this, what would happen during the ‘yada yada yada’ period for a legal case to end up at the Supreme Court?
John Fritze: Yeah. Well, first of all, you of course would have a long line of litigation in lower courts, in federal district court, at a US court of appeals, perhaps at the state court, depending on how you filed the litigation. And then you’re bringing some sort of constitutional or statutory interpretation question to the Supreme Court.
The first thing that happens is you’ve got to have four justices that want to hear it. So these guys meet privately and they discuss these cases for some significant amount of time, sometimes weeks or months. And if four of them decide that they would like to hear the case, then it gets on the Supreme Court’s argument docket.
And then they hold arguments in it. And then if it’s a big case, it’s usually decided at the end of the term, and that’s where we are right now.
James Brown: Let’s say I’m one of these four justices, so four of nine at this point. I know there has been much discussion of whether we should add more or not, but let’s put that aside. We have four of nine. What are the rationals that Supreme Court justices have and make in order to decide what they hear and what they don’t hear?
John Fritze: Well, one of the things they look at is whether the courts of appeals are split. So are certain courts of appeals ruling one way in an issue and are other courts of appeals ruling in the other way? That’s super important because there are areas of the law where if you’re in California, the law is different than if you’re in New York, let’s say, or anywhere in between.
And so that is an issue that the court very much wants to try to resolve those disputes. I would say that’s probably the main one. There’s also a little bit of mystery in this because there are times when there are splits and the court won’t take a case.
That might be because they see some other case coming down the pike that they think is more on point or some other reason why they choose which cases they’re going to take, but they often don’t tell us.
And that’s one of the maybe frustrating things about covering the Supreme Court, is that a lot of the work that goes into choosing which cases are taken or not, almost never do they tell us why they have decided to take it or not.
James Brown: Can we lobby the courts? And how, if we can?
John Fritze: No. This is a branch of government that was set up to be sort of insulated from public pressure and political pressure, certainly. That was how and why it was created. You’ve got two other branches that are set up to respond to politics and how people feel.
And this is by design supposed to be an institution that looks at the constitution, looks at the law and makes an opinion based on that, not based on whether or not the opinion’s popular. That’s the theory, anyway.
James Brown: Well, like you said, it’s the theory. Is that actually how it happens? I know that when judges are considered for Supreme Court, thinking of the last couple, thinking of Ketanji Brown Jackson, thinking of Amy Coney Barrett, thinking of John Roberts, even.
There were lots of talk about issues that they felt strongly about, or that people who thought that they should get those jobs felt strongly about. How do we see what issues that judges are more apt to hear? Are we looking at the cases they handled on their way up? How do we understand their perspectives, is what I’m rambling toward here?
John Fritze: Well, I think that’s a matter for great debate in entire academic studies and books that have been written about it. And I’m not sure I have an easy answer for you about why it is they take it or why it is they don’t. You mentioned the Senate hearings. That of course is a political place, and it’s often the last time that we hear these guys taking questions from lawmakers.
There’s a few times where they come before… They used to come before the Senate more for budget issues and testify. That hasn’t happened in a while. And so the senators don’t get a chance to do that. I think from the court’s perspective, they like to try to keep politics out of it as much as possible.
That’s the argument ostensibly, and that’s why you see when they are asked about abortion, and some of these cases at the Senate hearings that they tend to be very cagey in their answers. And they don’t really give us a lot of clarity often about how they’re going to rule. Because from their perspective, they don’t want to sort of prejudge these cases or give parties who might bring a lawsuit a sense of how they might come down.
James Brown: What kind of recourse do citizens have, does the rest of government have if they disagree with a ruling?
John Fritze: Yeah. I think the main recourse is for Congress, if Congress is not happy with the law. And of course Congress represents the… Sort of is closer to the people, so to speak, and represents what folks in the nation want.
Congress can pass a law in most cases to ameliorate or roll back a Supreme Court opinion. Congress has done that before, if there’s a political will to do that.
And again, I’m not here to sort of defend the court. That’s not my job, but I think from their perspective, they feel like if the law is not clear on something, then they rule the way they rule. And if Congress doesn’t like it, they can come in and change it.
James Brown: We hear lots of phrases in jargon when it comes to the court that most of us don’t fully understand. So I wanted to hit a few of those with you, if you don’t mind.
John Fritze: Yeah, I think it’s a great idea. It’s a very legal beat. There’s a lot of legalese.
James Brown: Well, before I start, is there one that you’ve thought about, that you throw around a lot that people may not totally understand?
John Fritze: I keep a law dictionary on my desk and I have to refer to it about once every argument. I can’t tell you how many doctrines and ideas that I have to look up and deal with. I’m not sure I could pick one. There are so, so many.
James Brown: Okay. We’ll start with the due process clause. What is it, and how does it apply to the world?
John Fritze: Right. The 14th Amendment basically says the government can’t deprive you of Liberty without due process. The question for the court is, what is Liberty? That’s the issue. And it’s like many of these cases, we don’t get a clear definition of what Liberty is.
And Roe v Wade, the court found a right to privacy is sort of being in the constitution, even though the words are not there. And from that, they found a right to abortion. Conservatives say, “Eh, not so much, it’s not there in the words of the constitution, so you don’t get it.”
James Brown: Fair enough. Stare decisis, what is this?
John Fritze: Right. Latin term, bringing you back to your Latin studies. I actually did study Latin, but I forgot it the day after class was over. But basically what it means is you stand by the decisions. It’s basically this idea of precedent, and it’s very important that the court not seem like it’s constantly shifting position on these big legal questions just because the justices have changed.
And one person’s stare decisis is another person’s bad precedent. And so that is part of what we get into. This is not a rock solid rule, but the idea is, and I think both conservative and liberal justices sort of talk about this idea or ostensibly embrace it, is the idea that we shouldn’t be overturning a precedent unless it’s a really bad precedent. And again, that is in the eye of the beholder.
James Brown: Have you heard of the Ginsburg rule?
John Fritze: Yes. Yes. The Ginsburg rule is the idea that justices shouldn’t prejudge. Came out of justice Ginsburg’s Senate confirmation hearing. Other justices have referred to it as part of that process. The basic idea is that they’re not going to answer any questions. That’s how I look at it.
They’re not going to be specific with lawmakers about how they feel about abortion or guns or this or the other thing, because they don’t want to tip their hand and let parties know how they might rule in the case. This is something that has a lot of value for the legal system. I sort of can understand the legal argument for it.
You don’t want to be sort of tipping your hand on how you’re going to rule. At the same time, it is a very convenient way for people before the various confirmation committees… In the case of Supreme Court justices, before the Senate Judiciary Committee, to basically not say how they view the biggest controversies of our time.
James Brown: Well, John Fritze, thank you for joining me.
John Fritze: Yep. Thank you.
James Brown: If you liked the show, give us five stars and write us a review on Apple Podcast or wherever you’re listening in. Do me a favor, share with a friend. What do you think of the show? Let me know at jamesbrowntv on Twitter, or email me at [email protected].
I love hearing from listeners. Thanks to John Fritze for joining me, and Alexis Gustin for her production assistance. Taylor Wilson will be back tomorrow morning with five things you need to know for Monday. And for all of us at USA Today, thanks for listening. I’m James Brown. And as always, be well.
George is Digismak’s reported cum editor with 13 years of experience in Journalism