Module 12 Survey Answers

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Apr 29, 2024

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M ODULE 12 S URVEY A NSWERS Question : The five-year rule. Answer : Many studies have shown that new justices to the Supreme Court experience an acclimation period, during which they learn the unique traditions and standards of the Court. This is observed through their writing fewer majority opinions, writing fewer dissenting opinions, and generally not asking as many questions during Oral Argument as more experienced justices. Question : Why does the Supreme Court allow for justices to make concurrences when they have already agreed to the decision and further elaboration is not needed? Answer : Because the justices are experts and may wish to elaborate on a particular point made in the majority opinion, or they may wish to take a different line of reasoning than that expressed in the majority opinion. Question : Solicitor General. Answer : The SG is the nation’s lawyer in the U.S. Supreme Court. The SG also oversees the federal government’s role in all appellate litigation and, accordingly, may not appeal a case that the U.S. government loses if the SG believes that the nation should not have prevailed in the courts below. It is a very powerful position as the SG represents the nation. The SG also decides if the nation should file an amicus curiae brief. Question : How does SCOTUS decide to take on a case? Answer : That is a difficult process. Pacelle examines some of these factors, but it comes down to each justice’s view of the legal, attitudinal, and situational factors in the case that make it so important to take up some of the Court’s time during a year. The Court only hears about 80-85 cases per year. Question : I found it interesting that Justices are able to declare their religion but not their political affiliation. I would like to explore the reasoning behind providing one type of personal insight but not the other. Answer : The justices may declare their political affiliation, but most do not as that would suggest that they have some ideological bias in hearing cases. This is why researchers often look to the justices’ background, the nominating president’s party and views, and so on. Question : Would the questions asked by Supreme Court justices generally be considered harmful for lawyers or a place for lawyers to get their point across more effectively? Are these questions a large part of the reason that there are certain lawyers who focus on cases at the Supreme Court? Answer : Questions asked during Oral Argument can form the basis of the reasoning of the majority opinion and may address concerns of both the majority and the minority coalitions that then work to form the majority and dissenting opinions. But the argument at the Court is a highly technical and difficult matter and so more experienced and higher profile attorneys often argue there and tend to have a better success rate than those who do not appear there as frequently. Question : Do all case briefs typically follow the APSA style, or are there specific situations or subjects where APSA formatting is more commonly preferred?
Answer : This depends on the discipline for which they are written. Practicing lawyers and judges use a style known as Bluebook. You will learn it once (and if) you attend law school. Question : Justices explain their justifications for decisions very in depth in their written opinions, but the unfortunate truth is that most citizens are not going to read Supreme Court decisions to understand their implications. Why do Justices rarely speak publicly about their decisions rather than only writing them? Answer : If they spoke out of that context of the formal opinion-writing process, they would be speaking with a private or individual voice, which could undermine the legitimacy of the Court. This could damage the limited store of support that the Court enjoys from the public. Question : If a case is sent back to the courts, is their new sections to be added into the brief? Answer : If an appellate court remands a case to a lower court, the lower court begins anew the proceedings consistent with the relevant appellate opinion, which will result in a second trial court ruling. That second trial court ruling could then be subject to appeal, too. Question : I am still confused on Adversarial Judicial System. Isn't that just how court normally is where there has to be someone who loses or wins? Answer : That is the idea that in the Adversarial System (see Chapter 3), the appellate court will generally rule for one party and against another. Question : When it comes to the assigning of the majority and minority opinions, does the Chief Justice have to approve the opinions once they are written? Or are they completely in the hands of the assigned justice? Answer : Once the opinions are assigned, then the Chief Justice is a member of the majority or the minority coalition. As such, he will participate in the drafting and editing of the relevant opinion as would any other member of the Court. So, he does not “approve” them as such. Question : At what point is a dissenting opinion written? As in, after the initial conference vote is taken, the minority immediately begin to write the opinion, or do they instead wait until after the draft is circulated? Answer : A dissenting opinion is written contemporaneously with that of the majority opinion. It follows the drafting and editing sequence that the majority opinion completes. Often, the main dissenting opinion will incorporate arguments of the majority opinion (and vice versa) to counter or give reasons why the other is wrong or misplaced. Question : How common are plurality opinions? Answer : They are relatively infrequent as the Court usually can muster a majority (five votes) in most cases.
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