Gerrymandering and the Supreme Court, part 1

In a recent presentation, we were asked “why doesn’t the Supreme Court have better rules?”  This was in the context that gerrymandering was so obviously wrong and impactful to democracy that the Supreme Court should have a “rule” that doesn’t let this sort of thing happen to voters.   While the Supreme Court has rules for engaging and conducting cases before the justices, they don’t have a ‘rule book’ of sorts specifically to the question at hand.  Let’s dive into the Supreme Court.

The Three Branches of Government

If your grasp of legislative, judicial, and executive is a bit dusty or 'checks and balances' sounds vaguely familiar, this infographic is a quick review of what this means in the U.S. and is foundational as we progress into discussing the Supreme Court.


Got it!  Now, what kind of cases does the Supreme court hear?

There are two primary kinds of cases that the Supreme Court hears and it has to do with their jurisdiction – or, authority to hear certain kinds of cases.

  • Original jurisdiction is held by the court in which the case was tried.
  • Appellate jurisdiction is held by the court in which appeals may be heard.

Example:  If you are arrested for doing donuts in the yard of someone you disagree with, you would be brought to the Court that has original jurisdiction over the case.  If you’re found guilty, you can appeal to the State Supreme Court – the court that has appellate jurisdiction.  (For the record, we don't endorse doing donuts in the yard of someone you disagree with.)

The Supreme Court has both original and appellate jurisdiction.  Their original jurisdiction is over a select kinds of cases like disputes between states .  The Supreme Court mostly has appellate jurisdiction to review cases that come from lower courts.  It has broad powers to exercise that jurisdiction over cases of federal law or federal constitution.

This diagram illustrates how cases 'flow' up to the Supreme Court to be heard.

While the Supreme Court has jurisdiction over cases of federal law and constitution, they generally hear are either cases where lower courts have strongly disagreed , including federal appeals courts – this is called ‘splits in authority.’  If there is an issue that is so divisive, they may choose to hear it before a split in authority can occur.

One of the most famous, recent state vs. state cases heard at the Supreme Court was New Jersey vs New York in a dispute over who had rights to Ellis Island.  (New Jersey won the battle of Ellis Island in 1998.)

Another kind of original jurisdiction case are constitutional law issues that the lower court decides but has federal law or constitution implications.

Constitutional Law Violation Example:  You fly back in from vacation abroad and are detained by customs officials upon re-entry into the U.S.  Customs officials want to search your cell phone, you refuse; they confiscate your passport and you feel compelled to let them access your phone.  They learn from looking through your messages that you’re doing something illegal and you are arrested.  In the trial court, you would ask the Court to exclude the evidence as a violation of federal law.  If you are convicted, you would appeal to your State Supreme Court; if you lose the appeal at the State Supreme Court, you could appeal to the Supreme Court to review the case as a 4th amendment issue (against unreasonable searches and seizures).

The Supreme Court has discretion on cases they will take up that generally fall into two groups:  mandatory and discretionary jurisdiction.  Discretionary jurisdiction is just like it sounds:  the decision of a court to hear a particular case brought before it.  Mandatory Jurisdiction is reserved for those cases where a state has upheld a state or local law against a Federal constitutional challenge or has held a Federal statute unconstitutional.  The cases the Supreme Court take are always discretionary.  They get thousands of these cases – known as certiorari, called ‘cert’ for short – and they “grant cert” (or accept to hear arguments/read the arguments ) to a small fraction of those cases.  Each Term, approximately 7,000-8,000 new cases are filed in the Supreme Court.

Most of us assume that the Supreme Court, as an appellate court, corrects all the errors of lower courts – as if they were check all the work of lower court rulings.  The Supreme Court doesn’t have the manpower or time to correct all the errors so they tend to take on those cases to resolve important disagreements between lower courts.

Going back to the original question:  why doesn’t the Supreme Court have better rules? 

Flash back to the Schoolhouse Rock video of I'm Just a Bill: Congress passes bills into law.  The Supreme Court has the power to review Congressional laws for upholding or affirming the validity of laws.  Or to deny the law and invalidate the law in question. You might think that the Supreme Court does this frequently (again, “checking” the work of lower courts), but it doesn't.

If the Supreme Court was always striking down congressional statutes (laws), it would be hard for people to know which laws to follow.  It would also compromise the impartiality of the Supreme Court by appearing to be too political.

Supreme Court precedents are binding on future Supreme Courts because of the principle of stare decisis, which is Latin for "let the decision stand.”   Appellate decisions are like common law in that they are binding on future courts and constrain their decisions.  Other courts have to follow the higher court's interpretation of the law and this interpretation has the effect of redefining the law without actually rewriting the congressional statute.

While appellate decisions are technically not law and only binding on courts, they are signals to legislatures about how courts will rule in the future.   And yes, state legislatures and Congress do listen to appellate decisions.

Why is partisan gerrymandering still legal and hasn't been overturned?

We will delve into this in our next update the week of June 26, 2017.

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