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 has an MBA from Marymount University and is the editor of the NIV Lifehacks Bible and the co-author of How to Argue Like Jesus. He and his wife, Misty, have one daughter. Read More