Fair Courts

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Certiorari: Hard to Pronounce, but Articulating American Culture

In his book, Closed Chambers, Edward Lazarus describes the Supreme Court as a microcosm of the nation as a whole. He argues that the ruptures in the Court’s culture mimic the ruptures in our larger culture, and that broad political disagreements are both imposed on the Court and reinforced by the Court. Further, Lazarus suggests that the Court has the power to transcend these ruptures, to dispose of partisanship and return to the task of safeguarding the basic values of the American Constitution.

However, one could argue (if she assumes no evil intentions on either side of the part) that partisanship springs from varying interpretations of American values, including those found in the Constitution.

Issues defined

Most (if not all) Supreme Court scholars agree that the United States’ major issues are resolved in the courts. Yet the Supreme Court does not only resolve issues, it also identifies them. Through selecting some cases and discarding others, the Court to some extent decides, inscribes, and defines what is an issue and what is not. The social issues to which the Court attends rise to the surface of American social life.

Before beginning its new term on October 7, 2003, the Supreme Court picked 48 cases, leaving room for another 30. But how does the Court decide what cases are worthy?

How cases are chosen

A petition for certiorari is a request that the Supreme Court hear a case that has lost in a state supreme court or in a federal court of appeals. In his book entitled The Supreme Court, Chief Justice William H. Rehnquist admits that the granting of certiorari is "a rather subjective decision, made up in part of intuition and in part of legal judgment."

He goes on to explain three major factors that influence the granting of certiorari. The first is conflict with other courts "if a case has been decided differently than other similar cases, it has a good chance of being chosen. Second, a case is attractive if the lower courts’ decision seems to be in conflict with Supreme Court precedents. The third and most subjective criterion is "general importance." Justices often pick cases that are expected to have a significant impact beyond the lives of the litigants.

This term, the Court has chosen to accept (and reject) several noteworthy cases.

Some of this term’s issues

Church and state

In December 2003, the Court will hear the arguments of Locke V. Davey, which raises questions about the separation of church and state. At issue is public funding for private religious education. Like many states, Washington does not allow public scholarship money to be used toward post-secondary education at a religious college or toward a major in theology. A federal appeals court declared this provision unconstitutional on the basis that it inhibits the free exercise of religion.

The Court will also consider the validity of the Pledge of Allegiance. The justices will have to determine if the phrase "under God" necessitates the government establishment of religion. Steven Shapiro, the legal director of the American Civil Liberties Union, claims that this case will be the star of the term.

But a case won’t necessarily be granted certiorari just because it deals with church and state. The Court rejected the high-profile Jacoby v. Prince case in which a Washington state school district prevented a bible-study group from establishing itself as a school club. The 9th U.S. Circuit Court of Appeals decided that the school district was violating the students’ first amendment rights to freedom of speech and religion, and ordered the school district to treat the bible studiers as it would any other student group.

State versus federal

The Court will also consider state immunity from federal law, specifically, from the Americans with Disabilities Act. In Tennessee v. Lane, the state of Tennessee claims that it cannot be sued for failing to make its courthouses wheelchair accessible. While states are protected to some extent by the 11th Amendment, a federal court ruled that in this case, the state can be sued. The federal court reasoned that a citizen’s right to access court is fundamental and cannot be infringed upon; the Supreme Court will revue this reasoning.

No abortion case, for now.

The Court opted to reject a case that had the potential to establish fetal rights. The justices would have considered the validity of South Carolina’s decision to apply its child protection laws to a fetus. Since the state’s courts consider a fetus to be a legal person, Ms. Regina McKnight was convicted of homicide for delivering a still birth.

Ms. McKnight was addicted to drugs when she was pregnant, and prosecutors claim that her cocaine use caused the stillbirth. Ms. McKnight’s attorneys claim that there is no proof of this. The case sets an unusual precedent: in South Carolina, women who suffer a stillbirth can be charged with homicide if their behavior put the fetus at risk.

Since the Supreme Court did not take the case, there is no chance (for now) of this becoming a national precedent.

It is obvious to us that the Supreme Court influences society with its decisions; what is less clear is the way that the Court shapes culture with the cases it chooses not to decide. WomenMatter will continue to track the actions of the courts so that each of us can decide what we think and what we support.

What do you think about these cases? Talk about this issue with other WomenMatter readers in one of our online forums. Or, browse the fair courts life issue for more information on this topic.

Posted on: 10/10/2003

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