How the U.S. Supreme Court Selects and Decides Its Cases

Eight Thousand Cases Enter, Sixty Leave

In the 2022–2023 term, the United States Supreme Court received 7,738 petitions for certiorari — requests asking the Court to review lower court decisions. It granted 58 of them. That 0.75 percent acceptance rate makes the Supreme Court's docket one of the most selective in any legal system in the world, and the criteria by which those 58 cases are chosen from nearly 8,000 are neither entirely transparent nor governed by statute. Understanding how the Court selects, argues, and decides cases requires understanding an institution that has largely written its own procedural rules over two and a half centuries.

The Certiorari Process

The word certiorari comes from Latin meaning "to be informed." A petition for certiorari asks the Supreme Court to review a decision by a lower federal court or a state supreme court. To be eligible, a case must generally have exhausted its appeals in the lower courts, and it must present a federal question — an issue of federal law or the U.S. Constitution — rather than a purely state law matter.

The nine Justices operate under the "Rule of Four": a case is granted certiorari if at least four Justices vote to hear it. The Court's reasons for granting or denying are almost never explained, and a denial of certiorari has no precedential value — it does not mean the Court agrees with the lower court's decision, only that it has declined to review it.

What Makes a Case Cert-Worthy

Although the Court's stated standard is to grant certiorari when a case raises an "important federal question," the most reliable predictor of a grant is a circuit split — a situation where two or more federal circuit courts have interpreted the same federal law or constitutional provision differently. Circuit splits create legal uncertainty in which the same federal law means different things depending on geography, a situation the Supreme Court is specifically positioned to resolve.

The Conference and the Cert Pool

Most Justices participate in the cert pool, an arrangement in which law clerks from participating chambers share responsibility for writing memos summarizing the approximately 150 petitions that come before each conference. The pool memo describes the facts, the lower court's decision, the legal question presented, and a recommendation on whether to grant or deny. Currently, only Justice Sotomayor's chambers does not participate in the pool, reviewing all petitions independently.

At conference — a private meeting of the nine Justices held approximately every two weeks during the term — cases are discussed and voted on without clerks or staff present. The Chief Justice presides and votes first; the discussion proceeds in order of seniority. No verbatim record is kept. Cases that receive four votes to grant are scheduled for oral argument; the rest are denied, typically without comment.

Oral Argument: Sixty Minutes That Rarely Change Outcomes

Oral argument before the Supreme Court is unusual in the American legal system: attorneys receive exactly 30 minutes per side (occasionally more in complex cases) and can expect to be interrupted by questions almost immediately. The Justices frequently dominate the argument time, asking pointed hypotheticals and occasionally using the exchange to signal their positions to each other rather than to test the advocates.

• Empirical research on whether oral argument changes outcomes is mixed. An analysis by Timothy Johnson and colleagues found that 71 percent of cases are decided in favor of the party who performed better at oral argument as rated by expert observers — but causation is difficult to establish, since the same underlying legal strength that might predict victory may also lead to stronger argument performance.
• Since the pandemic, transcripts and recordings of oral argument are released same-day, making the proceedings far more accessible to the public than before. The Court added live audio streaming in 2020 and has continued the practice.

Writing the Opinion: Who Decides and How

After argument, the Justices meet again in conference to take a preliminary vote. The most senior Justice in the majority (if the Chief Justice is in the majority, the Chief is always deemed most senior) assigns the majority opinion to one of the Justices in the majority. Opinion writing is the Court's primary output and can take months of revision as Justices negotiate the precise language of holdings and reasoning.

Stare Decisis and the Limits of Precedent

The doctrine of stare decisis — Latin for "to stand by things decided" — requires courts to follow prior precedents. For the Supreme Court, adherence to precedent is both a cornerstone of the rule of law and something the Court has repeatedly shown it can override when a majority determines that a prior decision was wrong. The Court has overruled its own precedents hundreds of times, with notable recent examples including Citizens United v. FEC (2010, overruling parts of McConnell v. FEC), and Dobbs v. Jackson Women's Health Organization (2022, overruling Roe v. Wade and Planned Parenthood v. Casey).

The criteria for overruling precedent include whether the rule has proven unworkable, whether reliance interests have developed around it, whether principles of law have eroded it, and whether facts underlying the original decision have changed. The application of these factors is itself intensely debated, both within the Court's opinions and in the broader legal community.

This article is for informational purposes only and does not constitute legal advice.