Explainer: How legal issues make it to the Supreme Court

May 24, 2019

Last week Alabama passed the most restrictive abortion law in the nation. The state government approved the law even though it conflicts with current federal law on abortion. For many lawmakers, that was the point. As Alabama state Rep. Terri Collins (R) said, “This bill is about challenging Roe v. Wade and protecting the lives of the unborn because an unborn baby is a person who deserves love and protection.”

But many legal experts on both sides are mixed about whether it will ever be considered by the Supreme Court. Many pro-life legal experts think the Supreme Court is likely to simply ignore the challenge to the legitimacy of Roe. “I think it extremely unlikely the court will ever take a direct attack on the Roe case,” said James Bopp, the general council for National Right to Life. “The court just doesn’t operate that way.”

Clarke D. Forsythe, senior counsel at Americans United for Life, makes a similar claim. “Some sponsors of these bills may be motivated by the belief that they present an ‘ideal test case’ for the Supreme Court,” says Forsythe. “Others think that an abortion prohibition will ‘force’ the Court to readdress Roe v. Wade.”

“Neither of these assumptions is accurate,” he says. “In fact, a prohibition on early abortions may be the type of law least likely to attract Supreme Court review.”

Misunderstandings about the legal process can cause pro-life advocates to become frustrated and disappointed. Having an understanding about how cases make it to the Supreme Court can help us to better temper our expectations. Here’s what you should know about the process of taking an issue to the highest court.

Challenging a law requires “standing”

To challenge a law like the Alabama abortion ban, a person must have “standing.” As Alliance Defending Freedom explains, before taking a case a court will asks whether the person or persons bringing a lawsuit, or defending one, has enough cause to “stand” before the court and advocate, since not anyone can go to court for any reason. The person must show there has been an “injury in fact” to their own legal interests, such as women who have been denied an abortion.

A federal court cannot keep a law like Alabama’s from taking effect until someone with standing challenges its legality. In many cases, political advocacy groups can find a client with standing that can be ready to challenge a law as soon as it is passed. Once a client with standing is found, a lawsuit will be filed in federal court seeking a preliminary injunction to prohibit the law’s enforcement.

Because federal law trumps state law and because Roe v. Wade and other abortion laws are considered binding precedent (i.e., a legal principle or rule that must be followed by lower courts when faced with similar legal issues), the federal court will rule against bans on abortion like the  one passed in Alabama. Once the law is struck down in a district court, the state of Alabama will be able to appeal their case to an appellate court.

Appeals are for finding legal errors

After a decision in a lawsuit has been made the losing party usually has the right to make an appeal. An appeal is a review by a judge of the trial court’s application of the law to see if the court made an error in law. If the court finds an error that contributed to the trial court’s decision, the appeals court will reverse that decision. (The reason so many pro-life laws lose on appeal is not because the appellate court necessarily agrees with the morality of the law but because they have found no errors in how the current binding precedent was applied.)

While there is a general right to have a case reviewed by an appeals court, the opportunity for further appeals to the highest court is limited. This means that few cases will even have the possibility of being heard by the highest court in the land. The Supreme Court will also only review cases that raise some federal or constitutional issue. Cases that deal with state law will only be heard if they conflict with federal or constitutional law. The vast majority of courts of appeals decisions are final, and the rulings are binding on lower courts within the same circuit.

The justices of the Supreme Court decide which cases they will take

In general, justices of the Supreme Court have sole discretion about which cases they will hear. No one—including Congress or the president—can force them to review a case that has been decided by an appeals court. There is also nothing that tells the justices how they must decide which cases they will take, so they rely on custom.

The Supreme Court has adopted the custom known as the “rule of four”—a case will be reviewed by the Court if four of the nine justices so decide. In the case of Ferguson v. Lines (1957), Justice Felix Frankfurter explained the rule of four:

"The ‘rule of four’ is not a command of Congress. It is a working rule devised by the Court as a practical mode of determining that a case is deserving of review, the theory being that if four Justices find that a legal question of general importance is raised, that is ample proof that the question has such importance. This is a fair enough rule of thumb on the assumption that four Justices find such importance on an individualized screening of the cases sought to be reviewed."

If four justices decide they will take a case, they issue a writ of certiorari, an order issued by the Supreme Court directing the lower court to transmit records for a case that it will hear on appeal. The justices tend to only accept cases that will affect the entire country, rather the just the individuals involved, or that clarify legal issues that are of constitutional significance.

Most cases are decided long before they reach the Supreme Court

Article III of the U.S. Constitution establishes the Supreme Court and gave Congress the authority to “such inferior Courts as the Congress may from time to time ordain and establish.” Congress used this authority in the Judiciary Act of 1789 to create the basic structure of the federal court system with a circuit court and district court in each judicial district.

At the time appeals from the district court would be heard by the circuit court and then, if necessary, the Supreme Court. Because the Supreme Court was becoming overloaded with cases, Congress passed the Evarts Act, which created a new tier of courts known as the U.S. circuit courts of appeals (later the U.S. courts of appeals). As the Federal Judicial Center notes, the existence of a new tier of intermediate appellate courts, from which many cases could not be appealed to the Supreme Court as a matter of right, resulted in a sharp reduction in the Court’s caseload.

Currently, there are 94 federal judicial districts that are organized into 12 regional circuits, each of which has a court of appeals. In 2018, there were 370,085 filings in the district courts for civil cases and criminal defendants, and 49,276 filings in the regional courts of appeals.

On average about 7,000 of these cases will be appealed to the Supreme Court each year, of which the justices will choose only 70. This is a small fraction of the caseload of the federal court system. For example, in 2018, there were 370,085 filings in the district courts for civil cases and criminal defendants, and 49,276 filings in the regional courts of appeals. This means the likelihood of any given case will being considered by the Supreme Court is miniscule (about one in 5,000). Even for those considered the likelihood they will addressed by the Supreme Court is only about 1 in 100.

Joe Carter

Joe Carter is the author of The Life and Faith Field Guide for Parents, the editor of the NIV Lifehacks Bible, and the co-author of How to Argue Like Jesus: Learning Persuasion from History’s Greatest Communicator. He also serves as an executive pastor at the McLean Bible Church Arlington location in Arlington, Virginia. Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24