Once a case makes it onto the docket, the litigants are required to submit briefs summarizing the legal issue to be resolved. Because the Supreme Court is not a trial court, it does not hear evidence; instead, it relies on the litigants' briefs, the official record, and the case abstract (past rulings from similar cases) to make its judgment on the matter at hand. In most cases, the Court also holds oral arguments to further explore the legal question at issue.

Oral Arguments

For most lawyers, making an oral argument before the U.S. Supreme Court is the defining moment of his or her legal career — the Super Bowl of trial law. In reality, very few lawyers ever get the opportunity. Although these sessions have never been televised (there is a small viewing gallery open to the public), most Americans are somewhat familiar with the proceeding and its purpose.

Oral argument serves two purposes: It allows litigants to emphasize certain arguments and supplement their briefs, and gives the justices the opportunity to delve further into the legal issues by probing the lawyers.

Each side is given thirty minutes to make oral arguments. Typically, the lawyers have only a couple of minutes of uninterrupted time before the justices interject with their questions. They do this, in part, to control the direction of the argument and rattle the lawyers. Although some court-watchers believe that a particular justice's vote can be discerned by his or her line of questioning during oral argument, this has never been proved a reliable predictor.

Some justices are more active than others during oral argument. Recently, Antonin Scalia and William Rehnquist have been known for their frequent and sometimes abrasive questioning, while Clarence Thomas almost never queries the lawyers. Justices David Souter and John Paul Stevens have been generally considered the most cordial and temperate in their questioning.

Taking a Vote

Once oral arguments have been completed, the justices convene a conference that same week to discuss the merits and take a vote. Only the nine justices attend the conference. Clerks, staff, and even stenographers are barred.

The chief justice begins by summarizing the case and then stating his point of view. The other justices then share their thoughts and vote, in descending order of seniority (measured by service on the Court, not age). The justices rarely engage in debate or change their minds during the conference. As Justice Scalia once put it, “To call our discussion of a case a conference is really something of a misnomer, it's much more a statement of the views of each of the nine Justices, after which the totals are added and the case is assigned.”

After the votes have been tallied, the chief justice — if he's in the majority — assigns an associate justice to draft the opinion (or the chief justice can do it himself). If the chief justice is not in the majority, then the most senior justice in the majority makes the assignment. During the drafting process, the justices receive considerable assistance with the research and writing from their clerks.

Decisions and Opinions

Once the opinion has been drafted and circulated, the justices are given the opportunity to either sign on or dissent; they are not bound to their original conference vote. Some use this time to “negotiate” concessions from the authoring justice in exchange for their vote. The other justices are allowed to circulate their own opinions as well at this point. The real debate of ideas occurs during this process of exchanging and negotiating opinions.