The Supreme Court's Decision-Making Process - The Writ

Attorneys and litigants alike often wonder how their case makes its way through the Supreme Court. You file a notice of appeal and docketing statement and then brief the case according to the Court’s scheduling order. But what is happening behind the scenes? Who decides the case, and what does the decisional process look like? An abridged description follows. This information comes from the Supreme Court’s Internal Operating Procedures, which can be found on the Court’s website.

Jurisdictional Check

One of the first things that happens once an appeal is docketed is screening by Supreme Court staff to ensure that appellate jurisdiction exists. The appellant assists with this jurisdictional check by accurately responding to the docketing statement questions regarding timeliness of the notice of appeal and substantive appealability. If the Court has concerns regarding its jurisdiction, it will issue an order to show cause why the case should not be dismissed. Generally, in civil appeals, even if the respondent files a motion to dismiss for lack of jurisdiction, the Court will wait until after the settlement process is completed before making a decision regarding its jurisdiction.

Assignment to the Court of Appeals

The docketing statement also helps the Supreme Court determine which cases should be assigned to the Court of Appeals. The Supreme Court presumptively assigns certain types of cases according to NRAP 17(b).

Decisional Tracks

For appeals that the Supreme Court decides to retain, cases are assigned to one of four decisional tracks in order to tailor the decision-making process to the needs of each case. These tracks are: (1) en banc chambers track; (2) panel chambers track; (3) en banc staff track; and (4) panel staff track. Some cases are automatically designated as en banc cases soon after the case is docketed. These include cases that involve ballot or election questions; judicial or attorney discipline; the death penalty; approval of pre-paid legal service plans; questions of law certified by a federal court; disputes between branches of government; the administration of the judicial system; or that raise as a principal issue a question of first impression involving the Nevada Constitution.

For all other cases, the decisional track is generally determined through screening by staff attorneys after the answering brief is filed. Cases tracked for en banc decision are limited to those that raise substantial precedential, constitutional or public policy issues, or where en banc consideration is necessary to secure or maintain uniformity of the Supreme Court’s decisions. Cases that are tracked for panel decision involve legal issues that have limited precedential value or have no impact beyond the litigants.

Generally, cases that require considerable personal attention from the justices will be tracked to chambers. Such cases include ones that present unsettled questions of general importance or that will allow the Court to better develop important areas of Nevada law. In contrast, cases that are tracked to staff can be resolved by the application of settled law. In addition to recommending a decisional track, the screening attorneys also assign a weight to each case based on the complexity of the issues presented and the anticipated time necessary for resolution. Ultimately, the chief justice, based upon the recommendation from the screening attorneys, makes the decision as to how a case will be tracked.

Oral Argument or Presentations

For cases that are assigned to chambers, generally, a law clerk will prepare a bench memorandum for the justices to review. Staff attorneys prepare the bench memorandum for cases that are on the staff track. After preparation of the bench memorandum, the chief justice (in en banc cases) and the assigned panel (in panel cases) reviews the case to determine whether oral argument is warranted. For the most part, oral argument is only held in cases that raise precedential or public policy issues or that involve unsettled areas of the law. However, to the extent the justices believe that oral argument will substantially aid them to better understand the facts or otherwise resolve the issues on appeal, the Court may schedule it. For staff-tracked cases or motions, in lieu of oral argument, staff attorneys may make oral presentations to a panel of justices to assist with the decisional process.

Resolution

For each case that is tracked to staff, staff prepares a proposed disposition under the supervision of the Court’s central staff legal counsel. The chief justice (in en banc cases) and the presiding justice (in panel cases) may assign a justice to supervise the staff’s preparation of the bench memorandum or disposition.

For each case in which oral argument occurs, following each day’s argument, the justices who are assigned to a case hold a conference to share their respective views. The justices try to reach a tentative decision and determine whether the disposition will take the form of a published opinion or unpublished order. After a chambers case is submitted, either with or without oral argument, the case is assigned to a justice for preparation and circulation of a draft disposition.

A draft disposition will go through an extensive editing process that involves the justices and staff. The Court sets internal deadlines for each stage of the drafting and editing process. At the time a draft disposition is prepared, the author must research the Court’s issue-tracking and opinion databases to ensure that the new disposition accounts for the Court’s precedents.

These are just a few highlights from the Court’s Internal Operating Procedures to illustrate how the Court’s decision-making process is designed to provide for the fair and expeditious resolution of each case.