How Does the Supreme Court Work?

Josephine (Jo) Bahn
The Supreme Court is the highest tribunal for all cases and controversies arising under the US Constitution to other laws of the United States.

The Supreme Court is the highest tribunal for all cases and controversies arising under the US Constitution to other laws of the United States.

peterspiro via iStock

The passing of Supreme Court Justice Ruth Bader Ginsburg has sparked discussion about what the US Supreme Court does and how their decisions impact everyday Americans. 

What is the Supreme Court? How does it get its power?

The Supreme Court is the highest tribunal in the United States for all cases and controversies arising under the Constitution to other laws of the United States. The nine Supreme Court justices remain the final arbiters of the law, charged with ensuring the American people receive the promise of equal justice under the law. The court acts as the protector and interpreter of the Constitution. 

The US Constitution establishes the Supreme Court. In 1789, Congress passed the Judiciary Act, and the court officially met for the first time in 1790. The Supreme Court consists of the chief justice of the United States and “such number of Associate Justices as may be fixed by Congress.” There have been nine associate justices since the mid-1800s. The president of the United States nominates justices, and appointments are confirmed with the advice and consent of the US Senate. 

What do Supreme Court justices do?

Supreme Court justices hear oral arguments and make decisions on cases granted certiorari. They are usually cases in controversy from lower appeals courts. The court receives between 7,000 and 8,000 petitions each term and hears oral arguments in about 80 cases. 

In addition to deciding these cases, each justice is responsible for emergency applications and other matters from one or more of the 13 federal circuits. Therefore, justices are sometimes asked to halt the implementation of a circuit court order, set a bond for a defendant, or stop the deportation of an alien. Justices also act on applications for requested stays of execution. 

How long is a Supreme Court term?

By law, the Supreme Court term begins on the first Monday in October and remains in session until late June or early July. A term is traditionally divided between sittings and intervening recesses. A sitting is when justices hear cases and deliver opinions. An intervening recess is when they consider the business before the court and craft their decisions, called opinions. These alternate every two weeks.  

How long do people argue before the Supreme Court?

Typically, each party receives 30 minutes of argument time to persuade the justices their interpretation of the law is correct. Almost all the cases that the justices hear are reviews of the decisions made by other courts—there are no juries or witnesses. The justices consider the records they are given, including lower court decisions for every step of a case, evidence, and the argument presented before them in making their final decision. 

I’ve heard something about a shadow docket. What’s that?

During any given term, the court hears cases argued before it and makes decisions. The shadow docket refers quite literally to decisions made in the dark, referring to emergency orders and summary decisions outside the court’s main docket of argued cases. In 2015, a University of Chicago law professor gave the shadow docket its name, but it has been around for decades. 

What do Supreme Court law clerks do? How are they different from the clerk of the Supreme Court?

While the justice makes the ultimate decision, the justice’s law clerk helps lay the foundation for the decision. Law clerks are responsible for researching case law, preparing the justice to hear the oral argument, and potentially writing large swaths of a majority or dissenting opinion. So, while it’s the justice’s decision, the law clerk helps the justice get to that opinion.

The clerk of the Supreme Court is the officer of the court responsible for overseeing the filings made with the court and maintaining its records. This person has held office by congressional authorization since 1789 and is subject to removal by order of the Supreme Court. 

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Josephine (Jo) Bahn

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Josephine (Jo) Bahn is a senior attorney in enforcement at the Federal Deposit Insurance Corporation. Bahn also serves as the DC Bar’s Under 36 Delegate to the ABA House of Delegates and will chair the ABA Young Lawyers Division in 2022–23.