Supreme Court Practice
SUPREME COURT PRACTICE
The supreme court is the only judicial body created by the Constitution. Article III, Section 1, specifies that "The judicial power of the united states, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The judges of that "one supreme Court," like the judges of the inferior courts created by Congress, are to hold their offices "during good behaviour " and to suffer no diminution of compensation during their continuance in office. Supreme Court Justices can be impeached, however. And it is not constitutionally clear that their "good Behaviour" term of office is the equivalent of a life term, as generally thought.
In practice, this "one supreme Court" has always acted as a unitary body. That means that the Court never divides into panels or groups of Justices for purposes of resolving matters submitted to the Court. All petitions and briefs are circulated to, and considered by, all participating Justices; and all Court decisions are rendered on behalf of the Court as a unit of nine Justices.
Article III of the Constitution, in establishing the judicial institution known as the Supreme Court, vests in the Court two basic kinds of jurisdiction: original jurisdiction and appellate jurisdiction. The Court's original jurisdiction is its power to decide certain cases and controversies in the first instance. Its appellate jurisdiction is its power to review certain cases and controversies decided in the first instance by lower courts.
In cohens v. virginia (1821), Chief Justice john marshall stated that the Court "must decide" a case before it that is properly within one of these two areas of jurisdiction, and that the Court has "no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given … [either of which] would be treason to the Constitution." But in the Court's judicial world, Marshall's proposition is no longer universally true, if it ever was. The modern need to control and limit the voluminous number of cases clamoring for review has forced the Court to resist demands that every facet of the Court's vested jurisdiction be exercised. Limitations of time and human energy simply do not permit the luxury of resolving every dispute that comes before the Court. Notions of judicial prudence and sound discretion, given these limitations, have thus become dominant in the Court's selection of those relatively few cases it feels it can afford to review in a plenary fashion and to resolve the merits. Such factors are evident in the Court's control of both its original docket and its appellate docket.
Section 2 of Article III specifies that the Supreme Court "shall have original jurisdiction" in all cases "affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Compared with cases on the appellate docket, cases on the original docket are quite few in number. Indeed, cases involving ambassadors, ministers, and consuls have never been common and have virtually disappeared from the original docket. The typical original case has thus become that in which a state is the plaintiff or defendant; most frequent are suits between two or more states over boundaries and water rights, suits that cannot appropriately be handled by any other tribunal. States have also sued each other over state financial obligations, use of natural resources, multistate domiciliary and escheat problems, breaches of contracts between states, and various kinds of injuries to the public health and welfare of the complaining state.
States can also invoke the Court's original jurisdiction to sue private nonresident citizens, or aliens, for alleged injuries to the sovereign interests of the complaining state. And a state may bring such suits on behalf of all its citizens to protect the economy and natural resources of the state, as well as the health and welfare of the citizens. The eleventh amendment bars an original action against a defendant state brought by a private plaintiff who is a citizen of another state; and the sovereign immunity principle recognized by that Amendment also bars such an action by a citizen of the defendant state. Because that amendment does not apply to the federal sovereign as plaintiff, the United States can bring an original action in the Supreme Court against a defendant state. All cases brought by a state against a private party defendant, however, fall within the nonexclusive category of the Court's original jurisdiction; such suits can alternatively be brought in some other federal or state court. The Court in recent years has sought to reduce its original docket workload by rejecting some nonexclusive causes of action and requiring the parties to proceed in an available alternative forum.
Original cases often involve factual disputes. In processing such cases, the Court considers itself the equivalent of a federal trial court, though with significant differences. The Court's rules and procedures in this respect are not very specific, and practices may vary from case to case. The case starts with a motion for leave to file a complaint, a requirement that permits the Court to consider and resolve jurisdictional and prudential objections. If the Court denies the motion for leave to file, the case terminates. If the motion is granted, the complaint is ordered filed, the defendant files an answer, and in most instances a trial ensues.
The Justices themselves do not conduct trials in original cases. Instead, they appoint a member of the bar or a retired lower court judge to serve as a special master. The special master then takes evidence, hears witnesses, makes fact-findings, and recommends legal conclusions. But all rulings, findings, and conclusions of the special master are subject to review by the Court. That review occurs after parties aggrieved by the special master's actions have filed exceptions thereto; all parties then brief and orally argue the exceptions before the entire Court, which decides the case by written opinion. A complicated case may require more than one hearing before the special master and more than one opinion by the Court, prolonging the case for years.
The Court itself has admitted that it is "ill-equipped for the task of factfinding and so forced, in original cases, awkwardly to play the role of factfinder without actually presiding over the introduction of evidence." Original cases take away valuable time and attention from the Court's main mission, the exercise of its appellate jurisdiction, where the Court serves as the prime overseer of important matters of federal constitutional and statutory law. The Court is thus increasingly disposed to construe its original jurisdiction narrowly, exercising that jurisdiction only where the parties cannot secure an initial resolution of their controversy in another tribunal. If there is such an alternative proceeding, the Court prefers to remand the parties to the lower court and to deal with any important issues in the case on review of the lower court's determination.
The Court's appellate jurisdiction is also defined and vested by Article III, section 2. That jurisdiction extends to all categories of cases and controversies, decided in the first instance by lower federal courts or state courts, that fall within the judicial power of the united states. Those categories include: cases arising under the Constitution, laws, and treaties of the United States; cases affecting ambassadors, ministers, and consuls; cases of admiralty and maritime jurisdiction; controversies to which the United States is a party; controversies between two or more states; and controversies between a state and citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, or between a state or its citizens and foreign states or citizens. The Court's appellate jurisdiction extends "both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
The exceptions clause in section 2 contains within it a constitutional enigma, as yet unsolved. The problem is the extent of Congress's power to control and limit the Supreme Court's appellate jurisdiction. The Court has never held that its appellate jurisdiction is coterminous with the section 2 categories of judicial power. Consistently since Wiscart v. Dauchy (1796) the Court has said, albeit often by way of obiter dictum, that it can exercise appellate jurisdiction only to the extent permitted by acts of Congress, and that a legislative denial of jurisdiction may be implied from a failure by Congress to make an affirmative grant of jurisdiction. The Court, in other words, assumes that its appellate jurisdiction comes from statutes, not directly from section 2 of Article III. The assumption is that Congress cannot add to the constitutional definitions of appellate jurisdiction, but that Congress can subtract from or make exceptions to those definitions.
It is clear that Congress has made broad statutory grants of jurisdiction to the Court, though not to the full extent permitted by section 2. These affirmative grants have always been sufficient to permit the Court to fulfill its essential function of interpreting and applying the Constitution and of insuring the supremacy of federal law. So far, the statutory omissions and limitations have not hobbled the performance of that function.
At the same time, periodic proposals have been made in Congress to use the exceptions clause to legislate certain exclusions from the appellate jurisdiction previously granted by Congress. Such proposals usually spring from displeasure with Court decisions dealing with specific constitutional matters. The proponents would simply excise those areas of appellate jurisdiction that permit the Court to render the objectionable decisions. Many commentators contend that the exceptions clause was not designed to authorize Congress to strip the Court of power to perform its essential function of overseeing the development of constitutional doctrines and guarantees. Objections are also raised that such legislative excisions are mere subterfuges for overruling constitutional rights established by the Court, a most serious infringement of the separation of powers doctrine. Because no jurisdictional excisions of this broad nature have been enacted, the Court has yet to speak to this constitutional conundrum. (See judicial system.)
Whatever the outer limits of the exceptions clause, Congress since 1789 has vested in the Court broad appellate power to review lower court decisions that fall within the constitutional "case or controversy" categories. Statutes permit the Court to review virtually all decisions of lower federal appellate courts, as well as a limited number of decisions of federal trial courts. And Congress has from the start given the Court jurisdiction to review decisions of the highest state courts that deal with federal constitutional, treaty, or statutory matters.
An ingredient of most jurisdictional statutes are legislative directions as to the mode by which the Court's appellate powers are to be invoked. In modern times, most lower court decisions are made reviewable by way of writ of certiorari or, in a declining number of specialized instances, by way of appeal. Congress permits the Court to issue its own extraordinary writs, such as habeas corpus or mandamus, and to review certain matters not otherwise reviewable on certiorari or appeal; and there is a rarely used authorization for lower federal appellate court certification of difficult questions to be answered by the Supreme Court.
At common law, the term "certiorari" means an original writ commanding lower court judges or officers to certify and transfer the record of the lower court proceedings in a case under review by a higher court. In the Supreme Court lexicon, the common law meaning of the term has been modified and expanded. Certiorari refers generally to the entire process of discretionary review by the Supreme Court of a lower court decision. Such review is sought by filing a petition for writ of certiorari. That document sets forth in short order the reasons why the questions presented by the decision below are so nationally important that the Court should review the case and resolve those questions on the merits. In most cases, the record in the court below is not routinely filed in the Court along with the petition.
Each Justice, after reviewing the petition for certiorari, the brief in opposition, and the opinion below, makes his or her own subjective assessment as to the appropriateness of plenary review by the entire Court. Such review is granted only if at least four Justices vote to grant the petition, a practice known as the rule of four. If the petition is granted, a formal order to that effect is entered; copies of the order are sent to the parties and to the court below, which is then requested to transmit a certified copy of the record. But at no time does any writ of certiorari issue from the Court. The parties proceed thereafter to brief and argue orally the questions presented in the petition.
An appeal, on the other hand, refers to a theoretically obligatory type of review by the Supreme Court. That means that once the appeal is properly filed and docketed, the Court must somehow consider and dispose of the case on its merits. There is said to be no discretion to refuse to make such a decision on the merits of the appeal, which serves to distinguish an appeal from a certiorari case.
To invoke the Court's review powers by way of appeal, the aggrieved party first files a short notice of appeal in the lower court and then dockets the appeal in the Supreme Court by filing a document entitled "jurisdictional statement." Apart from the different title, a jurisdictional statement is remarkably like a petition for writ of certiorari. Like a petition, the jurisdictional statement sets forth briefly the reasons why the issues are so substantial, or important, "as to require plenary consideration, with briefs on the merits and oral argument, for their resolution." The Rule of Four is followed in considering whether to grant plenary consideration of an appeal. Such a grant takes the form of an order to the effect that "probable jurisdiction is noted," although if there remains any question as to whether the case complies with the technical jurisdictional requirements of an appeal, the order is changed to read: "further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits." The appeal then follows the pattern of a certiorari case with respect to obtaining the record from the lower court(s), briefing the questions presented, and arguing orally before the Court.
As if to underscore the similarity between a jurisdictional statement and a petition for writ of certiorari, Congress has directed the Court, in situations where a party has "improvidently" taken an appeal "where the proper mode of review is by petition for certiorari," to consider and act on the jurisdictional statement as if it were a petition for writ of certiorari, and then either granting or denying certiorari. Thus a party cannot be prejudiced by seeking the wrong mode of Supreme Court review.
There is, however, one historical and confusing difference in the Court's summary disposition of certiorari cases and appeals, a difference springing from the notion that the Court is obliged to dispose of all appeals on their merits. When a petition for writ of certiorari is denied, the order denying the petition has no precedential value. It means only that fewer than four Justices, or perhaps none at all, want to hear and decide the merits of the questions presented. That is the end of the case.
But when fewer than four Justices wish to hear an appeal in a plenary manner, the long-held theory is that the Court is still compelled to dispose of the appeal on the merits of the questions presented. To comply with this theory, which is judge-made and not dictated by Congress, the Court has constructed a number of one-line orders, any one of which can be used to dismiss or dispose of the appeal without further briefing or oral argument. A typical order of this nature, used particularly in appeals from state court decisions, reads: "the appeal is dismissed for want of a substantial federal question." Such summary orders, which are devoid of explanation of the insubstantiality of the question involved, consistently have been held to be precedents. The Court has said that they must be understood and followed by state and lower federal courts.
In 1978, all nine Justices publicly conceded to the Congress that, while these summary dispositions of appeals are decisions on the merits, experience has shown that they "often are uncertain guides to the courts bound to follow them and not infrequently create more confusion than clarity." The Justices accordingly asked Congress to eliminate virtually all appeals, thereby recognizing formally that the Court's appellate jurisdiction is almost wholly discretionary. Congress has yet to respond.
At the start in 1789 and for a century thereafter, the Court was authorized to exercise only mandatory jurisdiction, either by way of appeal or a closely related process known as writ of error. But as the nation expanded and matured, litigation proliferated. It became evident toward the end of the nineteenth century that the Court could not keep up with its growing docket if it had to continue resolving the merits of every case that was filed. Gradually, Congress began to withdraw some of this mandatory jurisdiction from the Court, replacing it with discretionary jurisdiction by way of certiorari. But it was not until 1925 that Congress decreed a major shift toward discretionary review powers. At that time the dockets of the Court were so clogged with mandatory appeals and writs of error that litigants had to wait two and three years to have their cases decided. In the judiciary act of 1925, written largely at the suggestion of the Court, Congress transferred large segments of appellate jurisdiction from the obligatory to the discretionary category. Fully eighty percent of the Court's docket thereafter was of the certiorari variety.
But the 1925 transfer proved insufficient. During the 1970s, Congress eliminated many of the remaining appeals that could be taken from lower federal courts, leaving only a handful within the federal sector of Supreme Court jurisdiction. The largest pocket of mandatory appeals left untouched consists of appeals from state court decisions validating state statutes in the face of federal constitutional challenges. The caseload explosions in the 1970s and 1980s, which saw the Court's annual case filings rising near the 5,000 mark, created pressure to eliminate all significant remnants of mandatory appeal jurisdiction.
Nearly one-half of these filed cases are petitions and applications filed by prisoners, petitions that are often frivolous and thus quickly disposed of. But from the overall pool of some 5,000 cases the Justices select about 150 cases each term for plenary review and resolution. The Justices feel that time limitations do not permit them to dispose of many more than 150 important and complex controversies, although they do manage to dispose of another 200 or so cases in a summary fashion, without briefs or oral arguments. In any event, the number of cases granted full review has hovered around the 150 mark for many of the last fifty years. This constancy is largely the product of the discretion and the docket control inherent in the certiorari jurisdiction. Without discretion to deny review to more than ninety-five percent of the certiorari petitions filed each year, the Court's ability to function efficiently would soon cease.
The procedures by which the Court achieves this docket control and makes this vital selection of cases for plenary review are simple but not well understood by the public. And some of the processes change as workloads increase and issues tend to become more difficult of resolution. As of the 1980s, the procedures may be summarized as follows:
By law, the Supreme Court begins its annual term, or working session, on the first Monday in October. Known as the October Term, this session officially runs for a full year, eliminating the prior practice of convening special sessions during the summer to hear urgent matters. But for most administrative purposes, each term continues for about nine months, October through June, or until all cases considered ready for disposition have been resolved. At that point, the Court normally recesses without formally adjourning until the following October.
The Court usually disposes of requests for review, hears oral arguments, and issues written opinions only during the nine-month working portion of the term. But the Court never closes for purposes of accepting new cases, as well as briefs and motions in pending cases. That means that filing time requirements are never waived during the summer recess; parties must respect those requirements in all seasons. In most civil cases, certiorari petitions and jurisdictional statements must be filed within ninety days from the entry of judgment, or from the denial of rehearing, in the court below. This filing period is only sixty days in criminal cases, federal or state.
As soon as opposing parties have filed briefs or motions in response to a certiorari petition or jurisdictional statement, these documents are circulated to all nine Justices. These circulations occur on a weekly basis all year round. The circulated cases are then scheduled by the Court's clerk for disposition by the Justices at the next appropriate conference. Cases circulated during the summer recess accumulate for consideration at a lengthy conference held just before the opening of the new October term. Cases circulated during term time are considered at a conference held about two weeks after a given weekly circulation.
The massive numbers of case filings make it impossible for every Justice personally to examine these thousands of documents, although some may try. Most are aided in this task by law clerks, each Justice being entitled to employ four. The clerks often have the task of reading these documents and reducing them to short memoranda for the convenience of their respective Justices. In recent years, a number of Justices have used a "cert pool" system, whereby law clerk resources in several chambers are pooled to produce memoranda for the joint use of all the participating Justices. But whether a Justice reads all these matters or is assisted by law clerk memoranda, the ultimate discretionary judgments made respecting the grant or denial of review are necessarily those of each Justice. Law clerks simply do not make critical judgments or cast votes.
Law clerks are selected personally by each Justice, a practice dating back to 1882 when Justice horace gray first employed a top Harvard Law School graduate. In modern times, clerks are invariably selected from among recent law school graduates with superior academic records. And many Justices require that their clerks also have clerked for lower court judges. The clerks normally stay with their Justices for one term only, though some have served longer. Many law clerks have gone on to distinguished legal careers of their own. Three of them have become Supreme Court Justices: Justices byron r. white, william h. rehnquist, and john paul stevens.
An important element of each Justice's workload is to act in the capacity of Circuit Justice, a vestigial remnant of the earlier circuit-riding tasks. For this purpose, each Justice is assigned one or more federal judicial circuits, which divide the nation into twelve geographical areas. The Justice assigned to a particular circuit handles a variety of preliminary motions and applications in cases originating in the area covered by the circuit. Included are such matters as applications for stays of lower court judgments pending action on a petition for certiorari, applications in criminal cases for bail or release pending such action, and applications to extend the time for filing certiorari or appeal cases. Law clerks frequently assist in processing these applications, and on occasion an application may be disposed of by a written "in chambers" opinion of the Circuit Justice.
The Court no longer discusses every certiorari petition at conference. The excessive number of petitions makes it necessary and appropriate to curtail collegial discussion of petitions at the formal conferences of the Justices. At present, the Chief Justice circulates a "discuss list," a list of cases in a given weekly circulation deemed worthy of discussion and formal voting at conference. All appeals are discussed at conference, but rarely more than thirty percent of the certiorari cases are listed for discussion. Any Justice may add an omitted case to the list, however. Review is then automatically denied to any unlisted case, without conference consideration.
Decisions whether to grant or deny review of cases on the "discuss list" are reached at one of the periodic secret conferences. During term time, conferences are normally held each Friday during the weeks when oral arguments are heard, and on the Friday just before the commencement of each two-week oral argument period. Conferences can be held on other days as well. Only the Justices are present at these conferences; no law clerks or secretaries are permitted to attend.
Conferences are held in a well-appointed room adjacent to the Chief Justice's chambers, which are to the rear of the courtroom. The conference begins with exchanges of handshakes among the Justices, a custom originating in 1888. Coffee is available from a silver urn. The typical conference begins with discussion and disposition of the "discuss list" cases, appeals being considered first. The Chief Justice leads the discussion of each case, followed by each associate Justice in order of seniority. Any formal voting takes place in reverse order of seniority. Then, if there are argued cases to be decided, a similar order of discussion and voting is followed. Argued cases, however, may be discussed at other conferences scheduled immediately after a day or two of oral arguments, thus making the Friday conferences less lengthy.
Using the Rule of Four at these conferences, the Court selects from the pool of "discuss list" cases those that it will review and resolve on the merits, following full briefs and oral argument. A few cases, however, may be granted review and then resolved immediately in a summary manner without briefs or oral argument, by way of a per curiam written opinion. Such summary disposition has been much criticized by those who lose their cases without being fully heard, but the practice has been codified in the Court's rules. The important point is that it is the cases that are selected at these conferences for plenary review that account for the 150 or so cases at the core of the Court's workload each term.
The cases thus selected for full review reflect issues that, in the Justices' view, are of national significance. It is not enough that the issues are important to the parties to the case; they must be generally important. But the Court rarely if ever explains why review is denied, or why the issues were not deemed important enough to warrant plenary attention. There are occasional written explanatory dissents from the denial of review, but these can only express the views of a minority. Review is granted only when four or more Justices are subjectively convinced that there are special and important reasons for reviewing the questions presented, which may or may not involve a conflict among lower courts as to how to resolve such questions. It bears emphasis that the exercise of this kind of discretionary judgment enables the Court to control its docket and to limit the extent of its plenary workload.
When a "discuss list" case is granted review, the petitioning party has forty-five days in which to file a brief on the merits, together with a printed record appendix. The opposing party then has thirty days to file a brief on the merits. Briefs of intervening parties and amici curiae, if there are any in a given case, are filed during these periods. When all briefs are in, the case is ready to be scheduled for oral argument.
Oral argument before the Justices occurs only on Monday, Tuesday, and Wednesday of a scheduled week of argument, leaving the other weekdays available for work and conferences. Usually, fourteen weeks of oral argument are scheduled, in two-week segments from October through April. One hour of argument is allowed in most cases, one-half hour for each side. Arguments start promptly at 10 a.m. and end at 3 p.m., with a lunch adjournment from noon to 1 p.m. The Justices are well prepared, having read the briefs. Some may also be aided by "bench memos" prepared by their law clerks, memoranda that outline the critical facts and the opposing arguments. Counsel arguing a case may thus expect sharp and penetrating questions from the bench; and counsel are warned by the Court's rules not to read arguments from a prepared text.
Sometime during the week in which a particular case has been argued, the Court meets in secret conference to decide the merits of that case. With the Chief Justice presiding and leading the discussion, the normal pattern of collegial discussion and voting takes place. But the vote reached at conference is necessarily tentative and subject to change as work begins on opinion writing. Shortly after the vote is taken, the case is assigned to one of the Justices to draft an opinion for the Court. The assignment is made by the senior Justice in the majority, if the vote is split. Normally, the assignment is made by the Chief Justice, unless he is in dissent.
The Justice assigned to write an opinion for the Court then begins work on a draft. This is essentially a lonely task. Following the conference discussion, there is little time for further collegial consultation among the Justices in the preparation of an opinion. Depending upon the work patterns of a particular Justice, the law clerks may engage in much of the research and analysis that underlie scholarly opinions; some clerks may be assigned the task of producing drafts of an opinion, while some Justices may do all the drafting themselves. Since 1981, drafting of opinions has been mechanically made easier by the installation of word processors in each Justice's chambers.
Once the draft of the majority opinion has been completed, it is circulated to all other members of the Court. The other Justices may suggest various changes or additions to the draft. To become an opinion of the Court, the draft opinion must attract the adherence and agreement of a majority of five Justices, which sometimes requires the author of the draft to accept modifications suggested by another Justice as the price of the latter's adherence. One or more of the Justices who cannot accept the reasoning or the result of the draft opinion then may produce their own drafts of concurring or dissenting opinions. The circulation of these separate opinion drafts may in turn cause the author of the majority draft to make further changes by way of answer to arguments made in a draft concurrence or dissent. Thus nothing is truly final until the collegial exchange of opinions is complete, the votes are set in concrete, and the result is considered ready for public announcement. Even then, there are cases in which the Court cannot reach a majority censensus, resulting in simply an announcement of the judgment of the Court accompanied by a number of plurality, concurring, and dissenting opinions. The difficulty sometimes encountered in reaching a clear-cut majority result, while distressing to the bar and the lower courts, is generally reflective of the difficulty and complexity of some of the momentous issues that reach the Court.
The opinions and judgments of the Court in argued cases are announced publicly in the courtroom. At one time, opinions were uniformly announced on what became known as Opinion Monday. But the Court found that too many opinions announced on a Monday, particularly toward the end of a term, made it difficult for the press to give adequate media coverage to important Court rulings. The Court now announces opinions on any day it sits, thereby spreading out opinion announcements. In weeks in which oral arguments are scheduled for three days, the practice is to announce opinions only on a Tuesday or Wednesday, leaving Monday for the announcement of summary orders. Opinions may still be announced on a Monday, particularly if no oral arguments are scheduled for that day. After all oral arguments have been heard, usually by the end of April, opinions can be announced on any given Monday, when the Court sits to announce summary orders, or on any other day of the week that the Court wishes to sit solely to announce opinions.
The practices regarding the announcement of opinions in open court change from time to time. At one time, many opinions were read by the authors in full or in substantial part. More recently the Justices have tended merely to give short summaries save in the most important cases; in some less important cases only the result is announced. All opinions and orders are made available to the public and the news media a few moments after the courtroom announcements. Eventually, opinions and orders appear in bound volumes known as the United States Reports.
When the Court first convened in February of 1790, one of its first actions was to prescribe qualifications for lawyers wishing to practice before the Court. The original rule, in language very like that of the present rule, established two requirements: the attorney must have been admitted to practice in a state supreme court "for three years past," and the attorney's "private and professional character" must appear to be good.
Nearly 200,000 attorneys have been admitted to the Supreme Court bar since the Court was established. In recent times, as many as 6,000 have been admitted in a year. Prior to 1970, an attorney could be admitted only on motion of a sponsor in open court, before all the Justices. But the Court found that so much time was taken in listening to these routine motions and admissions and that it was often so expensive for a lawyer to travel to Washington from afar just to engage in this briefest of ceremonies, that an alternative "mail-order" procedure should be made available. Most attorneys today are admitted by mail, although some prefer to follow the earlier practice of being admitted in open court.
The modern Supreme Court bar has no formal structure or leadership. It is largely a heterogeneous collection of individual lawyers located in all parts of the nation. Many members of the bar never practice before the Court, and even fewer ever have the opportunity to argue orally. Most private practitioners who do have occasion to argue orally do so on a "once-in-a-lifetime" basis. Those who appear with some regularity before the Court are usually connected with an organization or governmental group specializing in Supreme Court litigation, such as the office of the solicitor general of the United States. Gone are the days when private legal giants, such as daniel webster, were repeatedly employed specially by litigants to present oral arguments before the Court.
While a lay litigant may prepare and file petitions and briefs on the litigant's own behalf, without the aid of a member of the bar, the complexities and subtleties of modern practice make such self-help increasingly inadvisable. Only in the rarest of circumstances will the Court permit a lay litigant to present oral argument. Those imprisoned have frequently filed their own petitions for certiorari, seeking some sort of review of their criminal convictions. Indeed, about half of the nearly 5,000 case filings per year can be ascribed to prisoner petitions. The Court catalogues these petitions on its in forma pauperis docket but gives them the same careful treatment it gives petitions filed on behalf of clients who can afford to pay filing and printing costs.
The Court will, on application by an impecunious litigant or prisoner, appoint a member of the Court's bar to prepare briefs on the merits and to present oral arguments, once review has been granted in the case. But the Court will not appoint a lawyer to aid in preparing and filing a petition for certiorari or jurisdictional statement. Legal aid programs operating in most lower courts usually insure that a lawyer appointed or volunteering to represent a prisoner in the lower courts will be available to file such documents in the Supreme Court.
Such are the basic processes and procedures that enable the Court to perform its historic missions. As the Court approaches its third century, the Justices are deeply concerned with the Court's growing workload and the resulting effect upon the quality of its decision making. The Court's internal and external procedures have been streamlined and perfected about as much as possible. Some restructuring of its jurisdiction and functions seems necessary. Yet despite these perceived shortcomings, the Court has managed to maintain its prime role in the evolving history of the American legal system. The Court's effective performance of that role is due in no small part to the procedures and rules established for those who practice before it.
Stern, Robert L.; Gressman, Eugene; and Shapiro, Stephen M. 1986 Supreme Court Practice, 6th ed. Washington, D.C.: Bureau of National Affairs.