Precedents, Judicial Review, and Supreme Court Basics

Article III of the United States Constitution establishes the existence of the Supreme Court and allows for the creation of other federal courts. Members of the Supreme Court must be appointed by the President of the United States and confirmed by the United States Senate. At present, there are nine members of the Court, but the exact number of justices is not established in the Constitution. Justices on the good serve during "good behavior" a term that many legal scholars interpret as "for life" or until a justice voluntarily retires. 

Additionally, the Constitution provides the court with original and appellate jurisdiction. Original jurisdiction allows the U.S. Supreme Court to act as a trial court (i.e. hearing evidence and issuing a direct ruling). However, original jurisdiction is limited to a handful of relatively rare circumstances. These include cases involving ambassadors or other high-ranking officials and disputes between the individual states. Appellate jurisdiction allows the Court to hear cases on appeal from lower appellate courts and in some circumstances, state courts. 

In order to hear a case, four justices must be in agreement to take the case on. Formally, when this happens the Court issues a "writ of certiorari" (sometimes simply referred to as "cert"). In recent years, the Court receives over 7,000 requests for cert and hears about 100 - 150 cases per term.

Even if the Court wishes to hear a case, there are some criteria that prevent it from doing so. Some of the most common ones are listed below (definitions provided by the Legal Information Institute of Cornell Law School). 

Advisory Opinions:  An advisory opinion is a court's nonbinding interpretation of a law, bill, or policy. It states the opinion of a court upon a legal question submitted by a legislature, government official, or another court. Parties seeking advisory opinions tend to do so to better understand their odds of winning a potential lawsuit before risking the expensive process of litigation. 

Federal courts cannot issue advisory opinions because of the Constitution's case-or-controversy requirement. 

Standing: At the federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have the constitutional authority to resolve actual disputes.

Jurisdiction: One of the most fundamental questions of law is whether a given court has jurisdiction to preside over a given case. Jurisdiction simply means that a court has the legal authority to hear a particular case, dispute, or motion. 

Mootness: Because Federal Courts only have the constitutional authority to resolve actual disputes legal actions cannot be brought or continued after the matter at issue has been resolved, leaving no live dispute for a court to resolve. In such a case, the matter is said to be "moot."

Ripeness: A claim is "ripe" when the facts of the case have matured into an existing substantial controversy warranting judicial intervention. 

Political Question: A political question is a subject matter that the Supreme Court deems to be inappropriate for judicial review because discretionary power over it should be left to the politically accountable branches of government (i.e., the President and Congress). Thus, the courts will leave constitutional questions on such matters to be resolved in the political process.

At times, the Court has also found it necessary to expand, modify, or reinterpret its own powers. For example, judicial review allows the Court to nullify a bill, law, action, or order if it is repugnant to the United States Constitution. Judicial Review is not found in the Constitution, rather, it was established in the case of Marbury v. Madison. 

Additional ideological considerations may also come into play. A judge who practices (intentionally or otherwise) judicial activism might be more likely to grant cert of issue a ruling on a case than a judge who is a believer in judicial restraint. Those who believe in judicial activism believe that the Court has the power to set aside government action or create new "judge-made" laws. Those who believe in judicial restraint tend to believe that the Court should defer to democratic institutions (i.e. legislatures and executives) when it comes to the creation and interpretation of laws.