Nash is a professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and jurisdictions, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash. In the weeks since Justice Antonin Scalia`s death, there has been much talk about the drawbacks of the Supreme Court`s 4-4 decisions. A decision of a “court divided by equal representation” entails the confirmation of the contested decision of the lower court. Equality thus solves the real problems for the parties to the dispute pending before the court. However, an affirmative answer from a tribunal divided on a parity basis has no previous effect. The issues to which the court is bound will not be resolved by the Supreme Court for all the others – lower courts, lawyers and litigants – in the future. Before counsel for the plaintiff leaves the gallery after the first presentation, he or she may set aside some time for rebuttal after counsel for the defendant has appeared. It is the plaintiff – not the court – who is responsible for tracking the remaining time for rebuttal. In typical program simulations, more than one student lawyer argues on each side. In this case, they must inform the student member before the hearing begins of how they wish to divide their time.
Typically, the first student lawyer who speaks also handles the rebuttal. During the hearing, judges have the opportunity to ask lawyers to clarify or elaborate on any issues arising from the pleadings. Often, much of the oral reasoning is devoted to answering these questions. Since Mr. Lyon is the applicant, his lawyer pleads first. Counsel for Mr. Lyon spoke for 25 of the 30 minutes they had and reserved the last five minutes for rebuttal. Once finished, the zoo`s lawyer has 20 minutes to respond. According to the zoo`s lawyer, a lawyer from the Attorney General`s Office pleads on behalf of the United States for ten minutes, then Mr. Lyon`s lawyer uses the remaining five minutes to refute. While the Supreme Court can review the entire case in the case, Lyon and the zoo agree that it will be helpful for judges to have easy access to the results of the review, so they decide to file a joint appendix with this material. (If Mr.
Lyon and the zoo had agreed that a common annex was not necessary, they could have filed an application asking the court for permission not to prepare one.) Whoever loses the case will have to pay for the printing of the common annex, so it is in Mr. Lyon`s interest and the zoo to keep it as short as possible. The common annex is presented at the same time as Mr. Lyon`s letter of merit. If judges decide to accept a case (grant a request for certiorari), the case is placed on the agenda. According to the rules of the Supreme Court, the applicant has a certain period of time to prepare a brief of up to 50 pages setting out his case on the subject on which the court has granted review. After the filing of the plaintiff`s procedural document, the other party, the so-called defendant, has a certain period of time to file the defendant`s procedural document. This order may also not exceed 50 pages. Once all the pleadings of the certification phase – the application, the BIO, the reply (if any) and the amicus curiae briefs (if any) – are filed, they are distributed to the judicial chambers.
Seven of the current judges participate in the certificate pool, a labour-saving scheme where a certificate application is first reviewed by a registrar in one of seven chambers. The registrar prepares a memorandum on the case, which contains an initial recommendation as to whether the court should consider the case; The memorandum will be distributed to the seven chambers, where it will be considered by the clerks and possibly the judges of the city. Judge Samuel Alito does not participate in the certificate pool. Instead, his trainee lawyers self-check incoming certificate requests and give him direct recommendations. Once the BIO has been submitted, Mr. Lyon may submit a response letter refuting the points raised by the zoo in the BIO and repeating the arguments put forward in its certificate application. Unlike the certificate application and BIO, which must be submitted to the court within strict deadlines, the exact timing of the response letter varies. However, a general rule is that a reply must be filed approximately ten days after the BIO has been filed.
But the most important control of the Supreme Court is the influence of the executive and legislative branches on the implementation and enforcement of its decisions. This process is called judicial implementation. While the courts play an important role in policy-making, they have no mechanism to make their decisions a reality. Remember that it was Alexander Hamilton in Federalist No. 78 who noted that the courts have “neither power nor will, but only judgment.” And even years later, when the 1832 Supreme Court declared the seizure of Native American land by the state of Georgia unconstitutional, President Andrew Jackson reportedly said, “John Marshall has made his decision, let him now implement it,” and the court`s decision was essentially ignored.  Abraham Lincoln also ignored Chief Justice Roger B. Taney`s decree declaring unconstitutional Lincoln`s suspension of habeas corpus rights in 1861, at the start of the Civil War. Therefore, court decisions are only relevant to the extent that they are observed and followed. Judges usually ask questions during each presentation. However, in courtrooms or classroom simulations, student judges do not ask questions within the first two minutes of oral argument on either side to reassure student lawyers. If the student commissioner holds up a five-minute warning card, the student lawyer on the podium should finish his argument and be ready to finish when the commissioner holds up the STOP card. And the courts themselves are affected by another “court” – the court of public opinion.
Although somewhat isolated from politics and the volatility of the electorate, judges can still be influenced by the pressure of special interests, the influence of elected officials or other public servants, the media and the public. As times change and popular opinions change, the court`s interpretation is likely to keep pace with these changes so that courts do not run the risk of losing their own relevance. In the first question, the previous case-law of the Court of First Instance remains justified; We will all have to wait for a future case to see if this precedent is maintained or reversed. It should be noted, however, that the existence of an earlier Supreme Court precedent in the first question means that the lower courts will not move away; previous Supreme Court jurisprudence is binding unless overturned by a future decision of the Supreme Court. Although each judge has the prerogative to read each petition for certiorari himself/herself, many participate in what is informally called a “pool of certainty.” Since applications for certiorari are received weekly, they are distributed among participating judges.