Every year, the U.S. Supreme Court addresses approximately 60 cases, using briefs and oral arguments to resolve the issues presented by the litigants. However, it is not uncommon for the justices to pose their own questions in a case, sometimes replacing or supplementing those raised by the petitioners. This enigmatic process, as detailed by Stephen Wermiel in his Nuts and Bolts series on SCOTUSblog, demonstrates the Court’s influential role in shaping legal discourse beyond the immediate concerns of the parties involved.
The mechanics behind the Supreme Court’s question-posing process are shrouded in mystery. There is presently no published rule outlining how this aspect of judicial procedure operates. Long-time Supreme Court practitioners remain divided on whether it requires a simple majority of four or a five-vote consensus to alter or append questions to be answered. For example, it takes four votes to grant certiorari, but typically five votes for a reargument or to issue an emergency stay, raising questions about where posing new questions falls within these procedural requirements.
This dynamic came under scrutiny in Louisiana v. Callais, a pivotal case argued last October. Initially heard last March, the case explores the constitutionality of race as a consideration in congressional redistricting. In June, the Court unexpectedly ordered a reargument centered on whether establishing a majority-minority district contravenes the Fourteenth or Fifteenth Amendments. The Court’s approach suggests a potential shift away from permitting racial considerations in district formation.
Another recent instance includes the emergency request regarding the removal of Federal Trade Commission (FTC) member Rebecca Slaughter, where the justices queried the constitutional validity of statutory removal protections for FTC commissioners. This presented an opportunity to revisit and possibly overturn the 1935 precedent established in Humphrey’s Executor v. United States, which mandated ’cause’ for the dismissal of independent agency officials.
The practice of reframing questions is not new for the Supreme Court. Landmark decisions, such as Brown v. Board of Education and the 2010 Citizens United v. Federal Election Commission, involved rearguments prompted by questions crafted by the justices themselves. Notably, this practice came into play during the 2015 decision in Obergefell v. Hodges, leading to the affirmation of a constitutional right to same-sex marriage.
The court’s discretion in defining the scope of legal inquiries remains a contentious topic among the academic community, with some experts arguing that the justices’ selective review of legal questions could overstep traditional appellate functions. Critics assert that, by choosing specific issues, the justices might be operating more like a legislative body rather than a judicial one. Despite these critiques, the justices appear steadfast in their practice of setting the agenda for American legal discourse.
The Supreme Court, as with many aspects of its operations, leaves questions open to interpretation and debate. For more nuanced insights, visit SCOTUSblog.