Chapter 2: How the Supreme Court Decides Cases

The  Constitution does not specify rules for how it should be interpreted. This means that since the Supreme Court has the responsibility for interpreting its meaning, individual justices may choose the interpretive method that will frame their interpretation of the Constitution–as well as of the laws that are involved in the case.

Justices have used several methods of interpretation in writing their decisions. The first and simplest is textualism, which means looking to the plain meaning of the words at the time they were written. Justice Gorsuch is a proponent of this method, which he used to interpret Title VII of the Civil Rights Act in Bostock v. Clayton County, 590 U.S. 644 (2020). That law bars discrimination that occurs “because of [an employee’s] race, color, religion, sex or national origin.” The Court had to decide whether Title VII protected an employee dismissed because of his sexual orientation. The employer argued that he was not fired because of his sex because if the employee been a gay woman she still would have been fired. Justice Gorsuch ruled that the law encompassed this discrimination because a male employee would not have been dismissed if he had been female since the relevant relationship would have been with someone of the opposite sex. Similarly, discrimination against transgender individuals was also covered since if they had not changed their sex, they would have been permitted to keep their jobs. This constituted discrimination on account of sex because if they had not changed their sex they would not have been fired. Justice Gorsuch acknowledged that Congress had never intended to bar such types of discrimination, but textualist interpretation required faithfulness to the words it had chosen: “Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.”

Textualism yields a determinate answer when the meaning of a word is certain, but often the reason that cases end up in court is the ambiguity of a key word. Many Justices look at the original meaning of the word or phrase, reasoning that the writers choose their words because of their meaning at the time.^[2] However, the language of the Bill of Rights indicates that its authors knew how to ensure that the meaning of a phrase would not change. Compare the language of the Eighth Amendment phrase “nor cruel and unusual punishments inflicted” with the Seventh Amendment command that “the right of trial by jury shall be preserved.” Whether a punishment is “unusual” will surely vary from time to time, and the same is likely true of whether a punishment is “cruel.” This means that a punishment that was at one time considered neither cruel nor unusual (sentencing a convicted rapist to death) could become both cruel and unusual over time, as the Court found in Kennedy v. Louisiana, 554 U.S. 407 (2008). Contrast this with the phrase “shall be preserved,” which the Supreme Court held in Pernell v. Southall Realty, 416 U.S. 363 (1974), means that the Seventh Amendment right to a federal jury trial is effectively frozen in time, as the test is whether the analogous cause of action in 1789 would convey a right to jury trial.

Since few terms in the Constitution contain a commitment to a preserved meaning (the 9th Amendment protection of “other [rights] retained by the people” is another example), there is no agreed-upon test to determine whether those who ratified the Constitution intended for its meaning to remain static over time. Nor is there evidence that they expected the Constitution to remain in effect for several centuries. After all, the Articles of Confederation were ratified in 1781 and replaced in 1788; how could the framers know how long the new Constitution would last? For example, the meaning of Due Process implies fairness, which also changes over time; the decision not to protect “due process as it is currently understood” suggests the recognition that it would change, and that emerging notions of fairness should also be protected. But there is simply no way to determine the extent to which the framers of the constitution were originalists.

Furthermore, if the Court applies an originalist frame, should it focus on what the framers intended–or what those who ratified their words thought they meant? Consider the Privileges or Immunities Clause of the Fourteenth Amendment, which was intended by at least some Congressmen to require the states to protect the freedoms enshrined in the Bill of Rights. If the state legislators that later ratified this amendment believed that it only incorporated some of those rights, should the Court prefer their interpretation to that of the amendment’s drafters? Or should the Court rely on the drafters’ intentions even if they were not known to the ratifiers when they voted? Accepting this latter interpretation would mean that the people would be bound forever by intentions they were unaware of at the time of ratification.

Even if the framers or the ratifiers believed that the original meaning (or intent) of a constitutional text should remain constant over time, there is often a paucity of information available about what that meaning was. Even more rarely is that information unambiguous. As Justice Jackson stated when he dismissed originalism in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion), “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” In the rare instance where the meaning of a phrase or word can be unambiguously ascertained through reference to a contemporaneous statement of meaning or intent, originalism can provide a helpful answer. But often that is not the case.

So if neither textualism nor originalism provide answers to most constitutional questions, what should the Justices rely on when interpreting ambiguous provisions? A third interpretive frame is structuralism, perhaps better termed contextualism. Consider the question of what branch of government is authorized to suspend habeas corpus. The Constitution clearly contemplates suspension in Article I, section 9: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.” Congress is given no power in Article I, section 8, to suspend habeas corpus, and the first section of that Article expressly limits Congressional powers to those defined therein, so there is an argument that Congress was not intended to possess that power. Abraham Lincoln claimed that the ambiguity permitted him to use his executive powers under Article II to find that the terms for suspension were met, especially when Congress was not in session. But if the President is not barred from exercising a constitutional power referenced in Article I, why couldn’t the judiciary also do so and rule that because of a rebellion or invasion it would refuse to grant writs of habeas corpus and allow for indefinite imprisonment without judicial review? And if the structuralist frame forecloses both the executive and the judiciary from exercising a power mentioned only in Article I, and the absence of Congressional authority to suspend habeas corpus means that Congress is likewise disabled from such suspension, could that mean the suspension of habeas corpus is subject to the Tenth Amendment, meaning that only the states have constitutional authority to suspend habeas corpus?

One of the most famous cases of structural analysis arose in McCulloch v. Maryland, 17 U.S. 316 (1819). Congress had chartered a national bank, but the State of Maryland contended that the lack of authority in Article I, section 8 to charter a bank meant that this was not a Congressional power, so only states could charter banks. The Bank of the United States cited the Necessary and Proper Clause as a basis for authorization, but Maryland argued that while a national bank was a proper means of collecting taxes and paying government debts it wasn’t actually necessary since the government had utilized state banks for this purpose between 1811-1816 and could continue to do so. Chief Justice Marshall relied on structural analysis in effectively rendering the word “necessary” meaningless, holding that because the clause was included in a section of the Constitution that granted powers it should not be interpreted as limiting Congressional powers. But if this is the case, then should the word “proper” also have a restrictive meaning? Marshall’s opinion leaves no doubt that he thought it did.

Moving away from contemporaneous sources and dictionaries means expanding the possibilities for interpreting the words of the Constitution. Justices have often claimed to find purposes in the Constitution, such as establishing equality, protecting human dignity, and even promoting the common good. Scholars give this term different names; it is referred to here as purposivism. Obergefell v. Hodges, discussed in unit 7, chapter 4, found that same-sex marriage is justified on the first of these purposes–the establishment of equality–as it holds that states must allow same-sex marriage so that sexual orientation does not become the basis for the denial of benefits. Human dignity was a theme that the Court often cited in cases involving prisoners’ rights, but what exactly comprises dignity in confinement? Can incarceration ever be dignified? Adrian Vermeule argued in Common Good Constitutionalism (2021) that the Justices should interpret the Constitution in order to promote the common good, but does that necessarily mean Christian nationalism (as he suggests)?

Another way of gaining insight into the meaning of provisions in the Bill of Rights is to take into consideration social consensus. This was utilized in Lawrence v. Texas, discussed in unit 7, chapter 1, which noted that most states had repealed laws prohibiting sex between persons of the same sex. It was also relied on in Roper v. Simmons, 543 U.S. 551 (2005), which held that because most countries and states had banned executions of persons who had committed murders while under 18 this practice was cruel and unusual. Aside from the lack of standards governing the use of this consensus approach–how many states must agree for a consensus to exist?–it is inapplicable to most constitutional provisions that lack salience.

Finally, some Justices explicitly adopt a pragmatic balancing approach to constitutional interpretation Unable to discern a clear interpretation, they take into account a variety of factors in explaining their preferred interpretation. This often includes the consideration of cost. For example, in United States v. Leon, 468 U.S. 897 (1984), the Court established a good-faith exception to the Fourth Amendment requirement that a valid warrant be obtained prior to a police search. The Court recognized that the exclusionary rule represented a balance between two values: the need for probative evidence of criminal activity and the desire to prevent unconstitutional searches. Rather than adopt a categorical rule that would exclude evidence obtained from warrants later shown to be based on inaccurate information, the Court held that the cost of excluding evidence of criminal conduct was too high to mandate its exclusion when a neutral magistrate had signed what appeared to be a valid warrant application. In many cases, interpretation comes down to the Court’s best judgment about what balance between conflicting values is best for the US.

Supreme Court justices also rely on stare decisis to justify some of their decisions. This Latin phrase means “let the previous decision stand.” This concept is often invoked when the Court fears that the practical consequences of overturning a previous decision override the value of correcting a previous interpretation of the constitution. In United States v. South-Eastern Underwriters, 322 U.S. 533 (1944), Justice Harlan Fiske Stone summarized the philosophy underlying reliance on stare decisis: “The rule of stare decisis embodies a wise policy because it is often more important that a rule of law be settled than that it is settled right.” These considerations were clearly apparent in the two cases where the Supreme Court considered whether to overturn the right to abortion. In Planned Parenthood v. Casey, further discussed in unit 7, chapter 1, Justice Sandra Day O’Connor wrote that while the Court had grave doubts about whether the Constitution protected the right of abortion, “Liberty has no refuge in a jurisprudence of doubt.” When the Court overturned Roe in 2022, several of the opinions addressed stare decisis and whether ending the right to abortion would cause excessive harm to women who had relied on the right to terminate a pregnancy. See Dobbs v. Jackson Women’s Health Organization, also discussed in unit seven, chapter 1.

• A majority opinion requires a majority of the justices to agree on the outcome (who wins) and also on at least one reason for the decision. This establishes a precedential determination of the ratio decidendi (reason for the decisions) in the case.
• In a plurality opinion, a majority of the justices agree on the outcome but there is not a majority for the ratio decidendi. For example, in McDonald v. City of Chicago, discussed in unit three, chapter 2, the Court held that the Second Amendment is incorporated against the states. However, a majority of justices did not agree on why. Four applied the Fourteenth Amendment Due Process Clause, while Justice Thomas applied the Privileges or Immunities Clause. The only precedent the Court established is that the amendment is incorporated through the Fourteenth Amendment . . . somehow.
• A special concurrence is an opinion by one or more justices who agree with the majority’s decision on the outcome of the case but disagree on the ratio decidendi as they have a different reason for their votes.
• A general concurrence is an opinion by one or more justices who agree with the majority’s ratio decidendi but have one or more additional reasons for their decision.
• A per curiam decision is a short statement of the outcome of the case without an extended discussion of the issues. It is issued in a variety of circumstances, and is often the opinion in shadow docket cases (see below).
• A dissent is an opinion by one or more justices who disagree with the outcome of the case.

The Supreme Court’s regular procedures are not designed for quick decisions. The petition for certiorari in Dobbs v. Jackson Women’s Health Organization was filed on June 15, 2020; it was granted the following April; argument took place December 1, 2021, and the decision was released on June 24, 2022, almost two years after the case was first presented to the Supreme Court. Unless a case is set for argument in the term in which it was filed, this two-year timetable is not unusual.

But what if a case arises where an immediate decision needs to be made? For example, a federal judge issues a nationwide injunction against a public assistance program that many rely on for food? Or a prisoner files a cert petition to stop an imminent execution? For such cases, the Court has developed a procedure that in the past decade has come to be known as the “Shadow Docket.”

Until the 1960s, such cases were rare. During the summer, the Court recessed, and justices often left Washington. Occasionally, they were summoned back to the capitol to hear an important case, such as Ex Parte Quirin, 317 U.S. 1 (1942) which determined whether German spies captured during wartime could be tried by military commissions, or whether the President could seize steel plants in order to prevent the workers from striking during the Korean War, which was decided in Youngstown Sheet & Tube Co. v. Sawyer. In the late 1960s, the Court began receiving more emergency habeas corpus petitions from death row prisoners, but these were often decided by the justice responsible for the circuit in which the prisoner was located. In such cases, oral argument would take place before that justice in his chambers, not before the full court. If the Court chose to grant a stay in order to hear the appeal, it would place the case on its regular calendar and the prisoner would remain on death row.^[4]

However, in the late 1970s the number of emergency habeas petitions vastly increased due to uncertainly that followed a major Supreme Court decision permitting the restoration of the death penalty.^[5] Since the issues that were raised required discussion by the full court, it began resolving them in conference rather than leaving the decision to an individual circuit justice. In 1980, the Court cancelled its formal summer recess to facilitate consideration of these emergency petitions, but since the justices were often out of town it did not hold oral argument. This is when the modern Shadow Docket procedure took shape.^[6]

The number of emergency habeas cases remained high until 1996, when Congress limited the number of habeas petitions a convicted prisoner could file. Meanwhile, the Solicitor General rarely used emergency appeals, preferring full consideration on the merits docket. During the 16 years between 2001 and 2017, the George W. Bush and Barack Obama administrations requested emergency consideration an average of twice a year. However, after Donald Trump took office in 2017, his Solicitors General filed over ten cases a year on the emergency docket. This made the availability of emergency relief more salient, and in the past five years the number of shadow docket cases has increased significantly even though the current administration has filed very few applications for this docket.

The process for seeking an immediate stay requires the losing party to file a petition with the justice for their circuit. That justice can act alone, but rarely does so since his or her decision can be immediately appealed to the full Court. The Court may but does not usually order additional briefing; it almost never asks for oral argument.^[7] At their Friday conference, the justices focus on four factors when considering whether to grant the petition for relief: (1) whether there are four votes to grant cert; (2) whether there are “fair prospects” for reversal of the decision below; (3) whether the petitioner will suffer irreparable harm if no stay is granted; and (4), in close cases, where the balance of equities lies, including consideration of the public interest.^[8] The Court usually issues a brief per curiam decision that states what relief (if any) is granted with little discussion of the Court’s reasoning. Often, there is no indication of the vote on the application. Individual justices may choose to write concurrences or dissents, but these do not establish precedential reasoning unless they are signed by a majority of the justices, which is rare.

The Court has been criticized for its increasing use of the Shadow Docket on the grounds that its truncated procedure does not permit the participation of amici curiae or oral argument, and its per curiam decisions give little guidance as to the principles upon which its decisions are based. While the Court claims these decisions are non-precedential, it appears that it does expect litigants to address them in their papers, and it occasionally refers to them as precedent in subsequent shadow docket decisions. While in some cases the Court will have another chance to review the issues if the courts below make decisions on the merits, in others (such as Roman Catholic Diocese of Brooklyn v. Cuomo, discussed in unit one, chapter 1) the Court’s decision on the stay will resolve the issue and there will be no further proceedings.