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Cases carefully chosen to catch the Supreme Court’s eye

Written by William C. Duncan

April 29, 2022

Where do Supreme Court cases come from?

For the most part, they come from lower court decisions. The court can hear disputes between states directly without prior lower court review, though these cases are rare.

More fundamentally, though, the cases arise out of real-world disagreements. In fact, the Constitution requires the court to only hear “controversies” – actual disputes rather than hypothetical questions.

Sometimes these disputes arise spontaneously, as when someone is accused of a crime and appeals their conviction. Similarly, a prisoner on death row may have no other option for delaying execution than to appeal to the court.

The court has almost total discretion in determining which cases it will accept. It looks at petitions appealing lower court decisions that raise important legal questions; it also considers cases that present opportunities to resolve conflicting decisions at the lower court level or provide guidance on an emerging issue.

Knowing this, groups and individuals who want to influence the law have an incentive to strategically pursue cases and appeals that are likely to get the court’s attention and be decided in a way favorable to their cause. Since the case has to involve an actual dispute, cases cannot simply be made up, but there are some points of control.

For instance, lawsuits can be brought that involve particularly compelling circumstances. On the other hand, when a case raises an important legal question but includes complicating factors, the party who wants a change in the law may be pressured not to appeal their case. If that does not work, advocacy organizations interested in the legal issue may choose not to support the appeal with amicus briefs or other resources.

Advocacy groups are most likely to promote cases and appeals that involve attractive parties and compelling circumstances.

A particularly inspiring example was the decades-long effort to end segregated schooling in the United States.

Early on, the National Association for the Advancement of Colored People created “a legal strategy to challenge school segregation.” Although every Black student excluded from whites-only schools was experiencing unconstitutional discrimination, the NAACP initially focused on exclusion from professional schools: “The NAACP was dealing with total exclusion; the state provided a law school or a medical school, but only for whites.” In an early victory, NAACP attorney Thurgood Marshall, who would later be a Supreme Court justice, convinced the Maryland courts to order the University of Maryland to admit a Black student in 1936.

In 1950, the NAACP persuaded the Supreme Court to rule in favor of another law student who was excluded from the white-only University of Texas Law School. The state had created a separate school for Black students, but the court unanimously held, according to Oyez’s summary, that “the separate school would be inferior in a number of areas, including faculty, course variety, library facilities, legal writing opportunities, and overall prestige. The court also found that the mere separation from the majority of law students harmed students’ abilities to compete in the legal arena.”

With these and similar precedents in place, the NAACP was ready to make a larger challenge to the system of segregated education, through carefully chosen cases:

There was no shortage of potential cases with which to move the battle forward; segregated elementary and secondary schools existed throughout the South and in other regions as well. The challenge would not be undertaken in just one district. If that was done, it would be too easy for a peculiar set of facts, a shrewdly litigated defense case, or a clever and obstinate judge to thwart the NAACP’s efforts. Instead different cases would be brought in several districts, in different regions of the South, and in other regions as well. Cases from across the country would be argued. Eventually, six cases would be consolidated and collectively known as Brown v. Board of Education.

The unanimous Brown decision finally ended the formal legal practice of school segregation, an important victory for equal protection and a great illustration of carefully choosing cases to influence the development of the law.

This process can help present clean scenarios for the court to decide critical issues that will influence the law. As such, it is a little-known but important part of the legal process.

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