ACSBlog: The Blog of the American Constitution Society

Nicholas Stephanopoulos, an attorney with the Washington D.C. law firm of Jenner & Block and an ACS Issue Brief author, describes what may be the “last, best defense” the Supreme Court’s left-leaning bloc, Justices Breyer, Ginsburg, Souter and Stevens, has against the Court’s conservative majority in a recent article for The New Republic:

Unlike the lower federal courts, which must decide all cases that are brought to them, the Supreme Court has enormous control over its docket. Under the so-called Rule of Four, which originated almost a century ago as a way to ensure that enough lower court decisions are reviewed by the Court, cases are heard if just four justices vote to grant a petition of a writ of certiorari (the technical name for an appeal to the Court). The strategy for the four left-leaning justices should consider, then, is voting as a bloc to hear more cases whose outcome is very likely to be “liberal.” (“Liberal” here meaning that the criminal defendant or civil plaintiff wins, the government or corporation loses, or generally that civil liberties are vindicated.)

The appeal of these “easy” cases stems largely from their influence on the lower federal courts. Whenever the Supreme Court decides a case, the lower courts scour the decision for clues about the Court’s thinking. They not only follow the case’s holding, but also respond to its style, tone, and status as the Court’s latest pronouncement on an issue. Even when the questions presented are not identical, the lower courts write opinions full of phrases like “as the Supreme Court recently explained” and “in accordance with the Supreme Court’s decision.” Easy liberal cases may lack the epic sweep of a Brown v. Board of Education or Miranda v. Arizona – but they compensate for their modesty with their large potential number and their capacity to move the lower courts (which decide hundreds of times more cases than the Supreme Court) to the left despite conservatives’ current legal ascendancy.