Asked and answered

Nuts and Bolts is a recurring series by Stephen Wermiel providing insights into the mechanics of how the Supreme Court works.

Every term in recent years, the Supreme Court has agreed to decide roughly 60 cases by receiving briefs, hearing arguments, and answering the questions posed in petitions by the parties.

But every so often, the justices decide to pose their own questions, sometimes in addition to and sometimes in place of the questions posed by the petitioner – that is, the litigant who lost in the lower court and sought Supreme Court review. At other times, the justices select which questions they will answer from among those posed by the petitioner.

There is a good deal of mystery about this process. The justices do not appear to have discussed it publicly, and there is no published rule governing how the process works.

Even veteran Supreme Court practitioners differ in their views on whether it takes four or five votes to add or alter the questions to be answered. The court’s longstanding rules establish that it only takes four votes for the justices to grant a hearing on a petition for certiorari, which is the usual vehicle for seeking Supreme Court review of an appeal. But it is generally understood that it takes five votes to order a case to be argued a second time or to grant an emergency stay of a lower court order. So is the action to frame or reframe the questions to be answered similar to granting certiorari, thus requiring only four votes? Or does it take five votes because it is a different process than the initial agreement to hear a case or because it modifies that initial decision?

These questions lead to even more questions: Who writes the new questions the court wants answered? And does the chief justice assign someone to draft the new queries?

This is a timely issue. One of the most important cases of the new court term, Louisiana v. Callais, which was argued on Wednesday, Oct. 18, may determine the extent to which the Constitution allows the use of race in drawing congressional district lines. In Callais, the court originally heard arguments last March in a challenge to a federal court order creating a second majority-Black district in Louisiana. But then on the last day of the term in June, the justices announced that the case would be reargued.

About a month later, the court ordered the litigants to file additional briefs arguing a new question: “Whether the State’s intentional creation of a second majority-minority congressional district violates the Fourteenth or Fifteenth Amendments to the U. S. Constitution.” If the newly posed question is an indication (and as the arguments may have suggested), the justices may now be poised to end any consideration of race in redistricting.

Even more recently, the court issued a stay that allowed President Donald Trump’s interim removal from office of Federal Trade Commission member Rebecca Slaughter. At the same time, the court treated the emergency request as a petition for certiorari, agreed to hear the case, and instructed the parties to answer these questions: “(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”

In framing these questions, the justices seem to signal their willingness to overrule Humphrey’s Executor v. United States, the 1935 ruling that independent agency commissioners could not be fired at the will of the president, but only “for cause” such as malfeasance or other misconduct. This would potentially eliminate the independence of the heads of agencies like the Federal Trade Commission, the National Labor Relations Board, the Equal Employment Opportunity Commission, the Securities and Exchange Commission, and more.

All that said, the court’s use of its discretion to formulate questions is not anything new. In the landmark Brown v. Board of Education, the court in 1953 ordered reargument and asked the litigants to discuss the original intent of the 14th Amendment and whether it gave the court the power to desegregate public schools. The court’s answer was a resounding “yes.” Then in 1954, having found segregated public schools unconstitutional, the court ordered reargument again and asked the litigants to consider what remedies the court could order.

In another landmark case, 2010’s Citizens United v. Federal Election Commission, the court heard oral argument and then, as in Callais, ordered reargument. The justices ordered the litigants to address whether some or all of two earlier precedents should be overruled, thus potentially reshaping campaign finance laws and allowing extensive election spending by corporations and labor unions. As with most of these examples, when the court issued its decision, the answer was “yes” by a 5-4 vote.

The finding of a constitutional right to same-sex marriage in 2015 in Obergefell v. Hodges involved the court rewriting the questions and limiting their scope. The petition asked the court to consider not only the constitutional status of same-sex marriage but also whether the Constitution prohibited one state from refusing to recognize the valid adoption of a child into a same-sex marriage in another state. The court left the adoption issue on the table but answered its own revised, streamlined question about constitutional protection for same-sex marriage in the affirmative.

One more example: When the court overruled the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, the attorney general of Mississippi asked the justices to decide three questions, including: whether all restrictions on abortions before viability are unconstitutional;  what constitutional standard should apply to anti-abortion laws that the state says protect the interests of women, fetuses, and doctors; and whether abortion providers should be allowed to challenge laws restricting abortions that the state says are designed to protect women’s health. The court, however, apparently concluded that only the first question was necessary to achieve the goal of ruling that the Constitution does not protect the right to abortion.

The practice by the Supreme Court is not without controversy in academic circles. A handful of commentators have argued in recent years that an appellate court should be reviewing full cases rather than picking and choosing issues to decide. The criticism suggests that in this process, the justices are acting less like a reviewing court and more like a political body setting an agenda.

Criticism notwithstanding, the process of the justices deciding specific questions to decide will likely continue unabated – and a mystery as to how it works.