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Inside the Court – Votes and Consideration of Cases

September 21, 2009

Although information about the internal functioning of the U.S. Supreme Court is well-documented, a lot of mystery remains for Georgia lawyers regarding how cases are handled internally at the Georgia Supreme Court.  At a recent event held at the State Bar, two Supreme Court Justices provided some insight into how and when decisions are made about cases brought before the highest court in the state.

The Court has two “wheels” the Clerk uses to assign each case in sequential order as they are brought to the Court.  One wheel is for civil cases and the other for criminal cases, to even out the workload among the Justices.

When a case first comes to the Court on a petition for certiorari, the case is assigned to a Justice for his or her staff to prepare an initial memorandum.  At each private banc meeting of the Justices, 30 petitions for certiorari are considered, based on the memorandums which have been reviewed by all the Justices.  The Justices discuss each petition, and after the discussion, the Justice to whom the case was assigned makes a recommendation.  If all of the Justices agree, the petition is either denied or granted.  But if just one Justice disagrees, the petition is put back onto the next calendar as a “second reader.”  In the meantime, the disagreeing Justice can do further research, distribute a memorandum of his or her own, or otherwise review the petition.  At the next banc meeting, the Justices vote and the petition is granted or denied.  Justices traditionally extend a courtesy of holding petitions if a Justice requests it.

In deciding whether to grant petitions for certiorari, members of the Supreme Court focus on the gravity and impact on the law.  If a Court of Appeals case is unpublished, it will not do any violence to the law, because those beyond the parties will not know the outcome.  The Court also reviews whether the error is limited to the parties or will have a greater impact.  Another element the Court considers is the extent to which a case has already been “picked over” by other judges, because it may not be worth the Supreme Court adding its two cents to the case.  The key issue for the Court on granting or denying petitions for certiorari is the gravity and public importance of the case, focusing on the wider impact on the law itself.

After the petition is granted or appeal is taken and the Court considers the case, a decision is made immediately after oral argument.  The Supreme Court meets in the robing room immediately after the 2 pm sitting on oral argument days and takes preliminary votes on each of the cases it heard that day.  Because each case was assigned to a Justice for initial research when it first came to the Court, the Chief Justice calls on the Justice to whom the case was assigned to make a recommendation.  After the recommendation and discussion by the Justices, a nonbinding “tentative decision” (called a “TD” by the Justices) vote is taken.  If the Justice to whom the case was initially assigned was in the majority, that Justice begins writing the majority opinion for circulation.  If the Justice to whom the case was assigned was not in the majority, he or she can either begin writing a minority opinion and try to persuade the other Justices, or can ask that the case be put back on the “wheel” and given to the next Justice in line.

Although in the past, the Georgia Supreme Court was a “cold” court, with few questions asked at oral argument; today it is considered “hot,” with plenty of questions from a wide cross-section of the Justices.

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