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Unit 2 · Topic 2.10

2.10 The Court in Action

Federal judges serve for life, so Supreme Court justices never face reelection and can make rulings that are unpopular. That independence is intentional, but it also raises questions about how much power unelected judges should have. Knowing how the Court picks and decides cases, and the different kinds of opinions it writes, helps you read any decision.

Key terms

  • life tenure
  • judicial independence
  • majority opinion
  • dissenting opinion

How a case reaches the Supreme Court

  • Most cases arrive on appeal from a federal court of appeals or a state's highest court.
  • The losing side files a petition asking the Court to issue a writ of certiorari, an order to send up the case records for review.
  • The Court receives thousands of petitions each year but hears only a small fraction, in recent years roughly 60 cases per term.
  • Under the rule of four, the Court takes a case if at least four of the nine justices vote to hear it.
  • The Court is more likely to accept a case when lower courts disagree on the same legal question, when the federal government (through the solicitor general) is asking, or when the issue is of national importance.

From briefs to decision

Each side files written briefs laying out its legal arguments. Outside groups with an interest can file amicus curiae (“friend of the court”) briefs (5.6). Then comes oral argument, where lawyers face rapid questions from the justices. Afterward, the justices meet privately in conference to vote. If the chief justice is in the majority, the chief assigns who writes the opinion; otherwise, the most senior justice in the majority does.

Types of opinions

Dissents sometimes win in the long run. Justice John Marshall Harlan's lone dissent in Plessy v. Ferguson (1896), which said the Constitution is “color-blind,” anticipated the reasoning that later rejected segregation.

OpinionWhat it isWhy it matters
Majority opinionThe ruling and reasoning agreed to by a majority of the justices deciding the case (five, when all nine take part)Binding precedent for future cases
Concurring opinionAgrees with the result but gives different or additional reasonsCan shape how later courts read the ruling
Dissenting opinionDisagrees with the resultNot binding, but can influence future cases or public debate
Unanimous decisionAll participating justices agree on the outcomeSends a strong, clear signal, as in Brown v. Board of Education

Independence and the debate over unelected judges

Because justices don't run for office, they can rule against majority opinion when they believe the Constitution requires it. Supporters say this protects minority rights and the rule of law. For example, the Court protected flag burning as symbolic speech in Texas v. Johnson (1989) even though the ruling was widely unpopular.

Critics raise the reverse concern: nine unelected judges with life tenure can override laws passed by elected representatives, and the public has little direct way to respond. Proposals such as fixed terms for justices come out of this debate, while defenders argue such changes would weaken judicial independence. Remember also that the Court can't enforce its own rulings; it relies on the executive branch and public acceptance, which is a practical limit on its power (2.11).

Worked examples

Try each one yourself first, then open the solution.

  1. Example 1

    Reading a decision's opinions

    In a 6–3 case, five justices join the opinion explaining the ruling, a sixth agrees with the outcome but writes separately to give different reasons, and three disagree with the outcome. Identify each type of opinion and which one binds lower courts.

    Show the solution
    1. Step 1: Five justices joined the main reasoning, so that is the majority opinion. Five of nine is a majority, so its reasoning is binding.
    2. Step 2: The sixth justice agrees with the result but not all the reasoning, which is a concurring opinion.
    3. Step 3: The three justices who disagree with the result write a dissenting opinion.
    4. Step 4: Only the majority opinion's reasoning sets binding precedent.

    Answer: Majority opinion (five justices, binding), one concurring opinion and one dissenting opinion. The majority opinion binds lower courts.

Common mistakes

  • Saying a concurring opinion disagrees with the outcome. A concurrence agrees with the result; a dissent disagrees.
  • Saying the Supreme Court must hear every appeal. It chooses its cases through certiorari and the rule of four.
  • Thinking life tenure means justices can never be removed. They can be impeached and removed, though no justice ever has been.

On the exam

  • Multiple-choice questions often test opinion types and the rule of four, sometimes with a short quote from a dissent or majority.
  • In argument essays on judicial power, life tenure can support either side: independence that protects rights, or a lack of accountability.

Connected topics

Videos

  • AP Gov 2.10 | The Court in Action | NEW!

    Carey LaMannaWatch on YouTube (opens in a new tab)

  • The Supreme Court in Action & How It Can Be CHECKED [AP Gov Review Unit 2 Topic 10-11 (2.10 & 2.11)]

    Heimler's HistoryWatch on YouTube (opens in a new tab)

  • The Court in Action | AP US Government and Politics | Khan Academy

    Khan AcademyWatch on YouTube (opens in a new tab)

  • Supreme Court of the United States Procedures: Crash Course Government and Politics #20

    CrashCourseWatch on YouTube (opens in a new tab)

  • How do Cases Reach the Supreme Court? | Your Democracy

    WHYYWatch on YouTube (opens in a new tab)

Check yourself

4 questions on 2.10 The Court in Action. Pick an answer to see if you got it, and why.

Question 1 of 4

A justice joins a majority opinion that polls show most Americans oppose. Which feature of the Constitution best explains why the justice can do this without fear of losing the job?

Question 2 of 4

A justice agrees with the Court's decision about who should win the case, but she writes separately because she would have reached that result for different reasons. Her opinion is

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

Justice John Marshall Harlan, dissenting opinion, Plessy v. Ferguson, 1896

Question 3 of 4

Harlan's opinion had no legal force when it was written. Which statement best explains why dissents like this one can still matter?

Question 4 of 4

Harlan's argument rests most directly on which part of the Constitution?

0 of 4 answered