The Supreme Court renders blockbuster decisions month after month and year after year. These are cases deciding some of the toughest legal issues in the land and settling controversies that have been brewing for decades. With some of its decisions, the Court sets the course for legal arguments for generations of lawyers and legal scholars while affecting public policy for hundreds of millions of Americans.
But for a person trying to get a case to the Supreme Court, it takes more than a good issue or a terrible injustice that was not fixed by the lower courts. It often takes years of planning, laying groundwork, cultivating good friends of the court, and a fair bit of luck. Indeed, for most people, the Supreme Court isn’t the court of last resort, it’s the court of no resort.
In a typical year, the Supreme Court rejects roughly 99% of the cases before it without even hearing arguments. That usually translates into fewer than 70 cases being granted out of 7,000 or so petitions. Those odds are long, but by understanding what the Court looks for in a case, there are ways to improve them.
The first step in getting a case to the Court is losing it either in a state court system or in a federal court of appeals. That may seem obvious, but it means that one cannot simply walk into the Supreme Court with an important issue or case. The lower courts must look at it first, and only then will the Court begin to take a look. After defeat in the lower courts, a losing party will file what is technically known as a Petition for Writ of Certiorari, or Cert Petition for short. This is a document that explains all the reasons why the Court should hear a case.
In looking for reasons why the case is worth taking up, the Justices will consider:
- Whether the case has good lawyers who can argue the case competently. Simply having a decent lawyer on a case increases to about 4% the odds of getting the Court to take it.
- Whether the petition explains not only that the lower court decision is wrong, but that other lower courts disagree about the same issue. The Court considers that one of its most important tasks is to make sure the rulings of the lower courts are consistent, because a person should receive the same shot at justice no matter where that person lives in the United States.
- Whether the issue on appeal is of nationwide importance. If the issue is about an important civil right, a matter of pressing nationwide concern, or one where Congress has tried to do something unconstitutional, the odds of the Court taking up the case are significantly higher.
Jim Crow rail cars and restaurants
Take the matter of racial discrimination. After the Civil War, when southern states first adopted their infamous Jim Crow laws—which required racial segregation—many people, both black and white, objected. They thought it was unfair that African Americans were forced to eat in separate restaurants, attend different schools, and even ride separate railroad cars. Worse, the facilities set aside for African Americans were often of inferior quality. Most good restaurants were closed to blacks, except for take-out windows. Blacks could not ride in first-class railroad cars. And schools for African American children were often overcrowded and poorly equipped. How could this be, when the United States Constitution was amended after the Civil War to ensure that all persons were entitled to “equal protection of the laws”?
Sometimes an organization is formed for the specific purpose of getting a case to the Supreme Court. It might be to advance environmental interests, business concerns, gun rights, or civil rights. One such organization was formed to fight the Jim Crow laws in Louisiana.
Homer Plessy, who was 1/8th black, intentionally violated a 1890 Louisiana law that prohibited African Americans from riding railroad cars set aside for whites. Plessy and his lawyers were part of The Citizens’ Committee to Test the Constitutionality of the Separate Car Law. In 1896, after losing in the Louisiana Supreme Court, the Citizens’ Committee and Mr. Plessy went to the United States Supreme Court in a case titled Plessy v. Ferguson. There, in one of the most infamous decisions in its history, the Court ruled 7 to 1 that the law was constitutional.
The Court held that separate facilities for blacks and whites didn’t violate the Equal Protection Clause of the Constitution so long as the facilities were equal. In reality, of course, there was usually nothing “equal” about the places that could be used by blacks when compared to those for whites. This “separate but equal” doctrine was one of the great failures of the Court.
But the decision also inspired future lawyers to fight it. After all, if the words of the Constitution meant anything, they meant that all people should be treated equally under the law, regardless of their skin color. Thus, in 1909, the National Association for the Advancement of Colored People (NAACP) was formed with a key goal to overturn the separate but equal doctrine. It took 58 years from Plessy to do so.
Coming at it from another direction
The NAACP realized that with the southern dominance on the Court and with the devastating loss in Plessy, it could not simply file a new case and get a better result. Instead, the NAACP began to use creative arguments to chip away at segregation.
For example, in one of its early big cases before the Supreme Court, the NAACP took on Louisville, Kentucky. After the City passed a law that forbade blacks from living in white neighborhoods, and vice versa, the NAACP sent its lawyer to Louisville to help fight the law. Knowing that Plessy was recent history, the NAACP decided it could not defeat immediately the separate but equal doctrine. Instead it argued that the Louisville law was unconstitutional, because it took away the property rights of owners who could no longer sell to the buyers of their choice. In 1917, in Buchanan v. Warley, the Supreme Court agreed and held that the law violated the constitution.
But as great a victory as Buchanan was, it didn’t directly take on Jim Crow. The NAACP then developed a strategy to take on segregation where it was most unequal, most unfair, and most vulnerable to challenge: segregated classrooms. Starting where a challenge would arouse the least controversy, the NAACP began by challenging segregated law and graduate schools. Because states like Texas and Oklahoma refused to admit blacks alongside whites, and even lacked separate schools, the NAACP proved that these states violated the Constitution’s Equal Protection Clause.
But the NAACP’s ultimate goal was to find a case to challenge school segregation in grade schools, where it mattered most. That opportunity finally came in 1954. The NAACP had filed several cases on behalf of students and their parents from around the nation challenging laws that forced black and white children to attend separate schools. They were largely unsuccessful in the lower courts. But one case would stand out.
Oliver Brown tried to enroll his third-grade daughter Linda in a Topeka, Kansas, elementary school near their home. They were denied admission because the school was reserved for whites. In 1951, the Browns and other black families filed a class action lawsuit. After losing at the Kansas Supreme Court, they filed a cert petition with the Supreme Court. Their case was accepted by the Court, which decided it in May of 1954. It was one of the most important cases in the Supreme Court’s history.
In a unanimous decision, all nine justices agreed that the separate but equal doctrine was wrong. They held that segregated schools violated the Constitution’s guarantee of “equal protection” for all citizens. The southern states were not pleased. Some tried to avoid complying by closing schools or only pretending to comply. But each time a southern state tried, the federal appellate courts, and sometimes the Supreme Court, stepped in to make sure that segregation would no longer be practiced anywhere in the nation.
Attempt to gag a free press
The era of civil rights also led to a landmark ruling on the free speech right of newspapers. In 1960, The New York Times published an advertisement calling for support of Dr. Martin Luther King’s desegregation crusade. The ad called attention to Dr. King’s arrest after a march in Montgomery, Alabama. There were several minor inaccuracies, such as the name of a song sung by protestors and the exact number of times Dr. King had been arrested. Taking advantage of those mistakes, L. B. Sullivan, Montgomery’s commissioner of Public Safety, sued for defamation. He claimed the ad put his efforts to maintain order in a bad light. An Alabama court awarded him $500,000 in damages to be paid by The Times and the advertisers. After the award was upheld by the Alabama Supreme Court, The Times convinced the Supreme Court to take the case. The newspaper and others pointed out that this defamation case was part of a pattern where southern cities sued newspapers in order to discourage them from reporting about the growing civil rights movement.
In another unanimous decision, in 1964 the Court decided New York Times Co. v. Sullivan. It held that a public official could not sue the press for defamation unless the public official could prove that the newspaper knew the facts were wrong and that it had “actual malice” against the official. Otherwise, the Court wrote, the First Amendment’s guarantee of Freedom of the Press would be lost to a multitude of defamation lawsuits. In a classic line, the Court emphasized the importance of free speech when it wrote that the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In the decades since 1964, the opinion has been mentioned over 7,000 times in cases from all the nation’s courts.
Non-traditional marriages
The right to marry the partner of one’s choosing was on the Court’s docket in 1967 and again in 2015. In 1958, Richard Loving, who was white, married his high school sweetheart, Mildred Delores Jeter. She was not white. Because interracial marriages were illegal in Virginia, they went across the border to Washington, D.C., to be married. But when the newlyweds returned to their hometown, the police raided their home and arrested them. They were each sentenced to a year in prison but were given the option to avoid prison if they left the state, never to return for 25 years.
After being referred to the American Civil Liberties Union by Attorney General Robert F. Kennedy, the Lovings sued using volunteer ACLU attorneys. When Loving v. Virginia reached the Supreme Court, Virginia argued that its law didn’t violate the Equal Protection Clause because it punished both blacks and whites equally. The Court unanimously disagreed, finding that Mr. and Mrs. Loving were punished solely because of race, and they were not being treated the same as people who married within their race.
Fast-forward to 2015 and the marriage equality case of Obergefell v. Hodges. For several years there was a concerted effort on behalf of advocacy organizations to strike down bans on gay marriage. These advocates began bringing multiple lawsuits against the bans in state and federal courts across the country. Some succeeded while others failed. Because the lower courts had such severe disagreements with one another over federal anti-discrimination laws and the U.S. Constitution, the Supreme Court stepped in to resolve the conflicting lower court decisions. Based partly on the opinion in Loving v. Virginia, the Supreme Court held that the couples wishing to marry were being treated differently based on their sex, just as the Lovings were treated differently based on race. Like many of its civil rights cases, the decision was controversial. But it remains the law of the land, and what were once non-traditional marriages are legal everywhere in the United States.
These important Supreme Court cases reached the Court only because of long and concerted efforts to change the law or to better protect individual rights. Sometimes it takes only a few years to reach the right result, other times it takes decades. They don’t always succeed at first, but it is a testament to the determination of the advocates to keep on trying, year after year, until the Court finally listens and rules.
