A (Mostly) Painless Glossary of Legal-Sounding Words
Ok, so before we get started, there’s one thing we have to talk about, and you’re going to hate it. I promised there wouldn’t be any legalese here and I plan to keep that promise. But in order for that to work, there are a few legal terms that we should all be familiar with. So to save everyone time, I’ve put together a list of some common legal terms that are going to come up over and over, and I’ve provided short, (hopefully) simple definitions.
If you come across a term in one of my reviews and you don’t recognize it, you should be able to mouse over it and get a definition. You can also come to this page and look at all the terminology in one place. If you’re looking for a definition and you don’t see it here, send me a message and I’ll add it to the list.
Now, if you’re anything like me, this is already boring you, so feel free to skip to the reviews. You’ll figure a lot of this stuff out along the way. For the rest of you rule followers, let’s jump in for a quick review of Supreme Court legal terminology, in order of importance. Keep in mind, there may or may not be a quiz at the end.
1. Petitioner:
The petitioner (sometimes called the Appellant) is the person or group who is bringing the case to the Supreme Court. Usually, this means that some decision went against them in one of the lower courts and they’re asking the Supreme Court to step in and fix what they think is a legal error.
2. Respondent:
The respondent (sometimes called the Appellee) is the person or group who is opposing the petitioner. In many cases, the decision of the lower court went in their favor and they are asking the Supreme Court to keep that decision in place.
3. Writ of Certiorari:
A Writ of Certiorari is the Latin name (lawyers love Latin) for the document that effectively begins the life cycle of a case in the Supreme Court. If the Court agrees to hear a particular case, this is often referred to as “granting cert.” However, the Court only hears a tiny fraction of the cases that it could hear. The cases that it has decided not to hear are often referred to as cases in which the Court has “denied cert.”
4. Brief:
A term that is often used to refer to the documents that the parties to a case will file with the Court in order to make their arguments. Both the petitioner and the respondent are required to file at least one brief in support of their argument, but they often file more. These are sometimes called “papers.”
5. The Record:
All of the documents in a case, taken together, are referred to as the record of the case.
6. Lower Court:
The Supreme Court is primarily a court of appeals. What that means is that its cases almost always come after some other court has made a decision. Typically, Supreme Court cases come from either the federal court system (the federal appeals courts are divided into 13 circuits representing different geographic areas), or the state court system (from each state’s highest court). These are often referred to as “lower courts,” because, in terms of hierarchy, they sit below the Supreme Court, which is referred to as the “highest court in the land.”
7. Affirm:
This is the term that the Court uses when it agrees with the lower court’s ruling. If a ruling is affirmed, it means that the Supreme Court is not changing the outcome that occurred in the lower court. Generally, this is what the Respondent is arguing for in a Supreme Court case.
8. Reverse:
In general, this is the term the Court uses when it does not agree with the ruling of the lower court. When the court reverses a prior ruling, it may change the entire outcome of the case, or it may leave parts of the lower court ruling in place. This is commonly referred to as “overturning” a case.
9. Holding:
The decision of the Court that sets out the winner and loser in the case, and establishes the rights and obligations of the parties. For example, we’ve all heard of Brown v. Board of Ed. We know it as the case that ended segregation in the American public school system. And that’s essentially the holding of the case: that the use of “separate but equal” facilities for students of different races was unconstitutional.
10. Rationale:
If the holding is the Court’s decision, the rationale is the way the Court got to that decision. In Brown v Board of Ed., the rationale for ending segregation in public schools was that it violated the Equal Protection Clause of the 14th Amendment.
It’s important to notice the difference between holding and rationale because, as we’ll see, sometimes the Justices agree on the holding, but not the rationale, which can cause problems.
11. Majority Opinion:
In a typical Supreme Court case, the Justices all get together and essentially vote on the proper outcome of the case. The outcome that gets the most votes is called the majority opinion, and it is the opinion that becomes law.
12. Concurring Opinion:
Sometimes, one or more of the Justices will agree with the result in the case, but not the way that the majority opinion got to that result. In that case, the Justice(s) will often file a concurring opinion in order to express their position on the law. As a general example, assume that the Supreme Court is hearing the case of X v. Y, and that 8 of the 9 justices think X should win because the 1st Amendment supports his position. Well, in that case, the majority opinion would be just that. But assume that the 9th Justice agrees with the other Justices that X should win, but thinks that the reason he should win is the 14th Amendment, not the 1st. In that case, the 9th Justice would probably file a concurring opinion to make their point about why the 14th Amendment is the right law to look at in the case. That concurring opinion would be an expression of the 9th Justice’s opinion but it would not become law (i.e. it wouldn’t be legally binding on anyone, because it didn’t get a majority of votes). Only the majority opinion becomes law.
13. Dissenting Opinion:
Commonly, the Justice(s) who disagree with the majority opinion will file their own separate opinion to state why the majority opinion is wrong. This is called a dissenting opinion, or dissent. To use the example above, assume instead that the 9th Justice disagrees with the other 8 and thinks that Y should win the case. Well, in that case, the 9th Justice would probably file a dissenting opinion explaining their position. As in the case of concurring opinions, dissenting opinions don’t become law.
14. Plurality Opinion:
So what happens if there’s no majority opinion? You might be thinking this is impossible. After all, there’s an odd number of Justices, so there will always be a tie-breaking vote, right? No, not exactly. Sometimes, there will be several different opinions that get votes, none of which get enough for a majority. Let’s take the example of X v. Y. Assume 3 Justices think X wins because of the 1st Amendment, 3 Justices think X wins because of the 14th Amendment, and 3 Justices think Y wins. What happens? In this case, what happens is a rare kind of opinion called a plurality opinion, in which an opinion that doesn’t have a majority of votes still becomes law. So in the example above, X obviously wins because 6 Justices agree on that, but why does X win? Well, one of the two opinions that got 3 votes will become the plurality opinion and become law, while the other two will become a concurring opinion and a dissenting opinion. There are all sorts of confusing rules about how to interpret plurality opinions, and what they actually mean. Don’t worry about that, you aren’t getting tested. It’s just a good term to know.
15. Amicus Curiae:
Another Latin term (sensing a pattern here?) that means “friend of the court.” Essentially, these are people or organizations that are not parties to the case but are allowed to file briefs and make arguments in support of one side or the other. Generally, only the parties to a case—the petitioner and the respondent—are allowed to file documents and make arguments, but sometimes amicus curiae are allowed to do so, usually because they possess some technical or practical expertise that would be beneficial for the Court to consider. A filing by one of these parties is called an “amicus brief.” For example, because the U.S. government enforces many of the laws considered by the Supreme Court, the Justice Department often files amicus briefs in order to express the opinions of the Executive Branch.
16. Legislature:
A group of lawmakers that meets in order to debate and pass laws. The federal legislature is called Congress, which is comprised of the Senate and the House of Representatives. Every state also has its own legislature with its own rules.
17. Statute:
“Statute” is just a fancy, lawyer-y way to describe an ordinary written law passed by a legislature. For example, the state law that tells you it’s illegal to run a red light is a statute. So is the law that tells you not to murder your neighbor for planting trees on your property. For our purposes, the only thing we’ll see that isn’t a statute is something that comes from the U.S. Constitution.
18. Act:
When a legislature passes a set of laws, it often refers to the whole set as an Act. This is especially true of Congress. That Act is normally comprised of many smaller laws. So, for example, the Civil Rights Act of 1964 is comprised of 11 titles, each of which is a law in its own right.
19. Title:
Statutes often have both a short and a long title. You’ll almost never hear anyone refer to a law by its long title, which is usually very, very long. You may also hear references to titles within a larger Act. To use the example above, you might hear someone refer to Title VII, which is the short title for the seventh part of the Civil Rights Act of 1964.
20. Injunction:
An injunction is effectively an order from a court that directs a person or group to either do something or not do it. For example, if your neighbor was going to plant trees on your property, you might ask a court for an injunction telling your neighbor not to do that. If the injunction was granted, your neighbor would be prevented (“enjoined”) from planting his trees, and disobeying could expose him to civil or criminal penalties. In Supreme Court cases, injunctions are often used to try to prevent a particular law from going into effect. For example, if your local government passed a law that allowed your neighbor to plant trees on your property, you might ask a court for an injunction to prevent that law from going into effect. If the Supreme Court were to hear a case like this, it would typically issue a stay (see below), preventing the law from going into effect while the case was decided.
21. Stay:
In general terms, a stay, or stay of execution, is an order that prevents some action from occurring for a certain amount of time, or while a case is pending. Let’s take the example from above. Assume that you go to your local courthouse and ask for an injunction to prevent your neighbor from planting his trees. Assume that you lose your case. Your neighbor can now plant his trees on what you think is your property. But, in a case like this where your property is potentially at stake, your local court might grant a stay, which would prevent its ruling from going into effect until you have had a chance to appeal. Cases may arrive in the Supreme Court with stays in place, and the Court can also implement its own stays.
The term stay of execution doesn’t have anything to do with the death penalty, though the Supreme Court does often grant or deny stays of execution in cases where a condemned individual challenges their death sentence.
22. Term:
The Supreme Court hears cases in one-year terms that run from the first Monday in October through the Sunday before the first Monday in the following October. This is the window during which the Court hears and decides its slate of cases. At the time this list is being posted, we are in the midst of the 2019-2020 term. As a general rule, this page will not deal with cases that have already been decided, except under special circumstances.
23. Federalism:
A method or theory of government in which two separate governments occupy a single political system. In America, the two separate governments are the federal government, and the governments of the fifty states. In general, federalism is viewed as a balance of power that is uniquely important for our system of government.
24. Separation of Powers:
This term describes the balance of power within the federal government. You probably learned all about this in high school, but how about a refresher? There are three branches of the federal government (state governments too, but this term generally comes up more often in the federal context): the Legislature, the Executive, and the Judiciary. The Legislature (Congress) is comprised of elected officials whose job it is to pass the laws of the country. The Executive is headed by the President, and its general responsibility is to enforce the laws of the country. The Judiciary is effectively headed by the Supreme Court, and its job is to apply the laws of the country to the cases that come before it. Our government was founded based on the notion that each of these jobs belonged exclusively to each particular branch. There was to be no overlap, and the idea was to keep each branch in balance with one another (these are the checks and balances you’ve heard so much about). So if, for example, the Executive began making and passing its own laws, it would be usurping the role of the Legislature. This would give the Executive too much power and threaten the balance. You will hear about this concept a great deal in Supreme Court cases, so it’s a good one to know.
25. Case and Controversy:
This term describes the sorts of issues that the Supreme Court (and any court really) has the power to resolve. Article III of the Constitution tells us that the Supreme Court can only resolve “cases and controversies.” In general terms, this means that there has be a genuine dispute between two or more people or groups, on opposite sides of one or more issues. In other words, there has to be an actual legal case pending or the Supreme Court is not allowed to step in. This makes sense right? Courts exist to interpret laws, and the way that happens in America is that two people on different sides of a law come to court and argue about what the law means.
The rule exists to prevent courts from issuing what are referred to as “advisory opinions.” Essentially, if we didn’t have the case or controversy requirement, the Supreme Court would be able to step in and issue legal decisions on any issue. For example, if it didn’t like what the President was doing, the Supreme Court could simply step in and say that the President’s behavior was unconstitutional. If it could do that, the Supreme Court would basically become our national dictator, stepping in whenever it wanted and offering binding legal rulings on any issues that caught its eye. Obviously, that would be a major issue for our system of government, and for the Separation of Powers (see above).
26. Standing:
In the American judicial system, standing refers to an individual’s right to bring a legal action in a particular case. I’ll state the basic rule as this: if you haven’t suffered an actual injury that the court can fix, you don’t get to bring a lawsuit. Now, when I say “actual injury,” I don’t necessarily mean a physical injury. Your actual injury could be physical, or it could be monetary (e.g. you lost your job). It could also be something else entirely, like a loss of property, a loss of reputation (e.g. someone has defamed you), or a loss of liberty. To use an example from above, if your neighbor comes over to your house and says he’s just planted a bunch of trees on your property, you have standing to sue him. He’s created an actual injury to your property that the court is capable of fixing (by either issuing an injunction against your neighbor or by making him pay you damages).
One other quick note: your injury must be something specific to you. It’s your broken arm or your lost job or your property with unwanted trees. As an example, you can’t come to court and sue your state because there’s too much traffic on the highway. That might be an actual injury (the long ride to work deprives you of money or your sanity), but it’s an injury that belongs to literally everyone in your state, and it isn’t specific to you. This is called a generalized grievance, and it won’t fly in court.
The other part of the equation is that your injury must be one that the court is capable of fixing. The general concept here is that there are some injuries that no court can fix. To use the example above, assume you’re allowed to sue your state for the horrible traffic problem. Well, the court is probably going to say that this is an injury it doesn’t have the power to fix. It can’t tell the state what to do about the traffic, and it can’t simply give everyone in the state compensation for the traffic. In legal terms, this injury is not redressable.
27. Ripeness:
Ripeness is related to standing, but it isn’t the same. Standing tells the court who can bring a legal case. Ripeness (and a related concept called Mootness, see below) tells the court when the case can be brought. In general, courts can only hear cases that are ripe for review, meaning cases in which the actual injury has occurred or is very likely to occur. Consider our example: if your neighbor come over to your house and says he’s just thinking about planting his trees on your property, you probably don’t have standing. Your neighbor hasn’t taken any action yet, and you haven’t suffered any actual injury. This issue is not ripe for review, because nothing has actually happened yet that affects anybody’s rights. Now, you don’t have to wait until he actually plants the trees. Generally, once he takes some concrete step that makes the actual injury certain (e.g. renting a dump truck, or even just telling you he’s going to plant the trees), the case is ripe for review.
28. Mootness:
Mootness is essentially the opposite of ripeness. Generally, a case is moot if some change in the facts or the law has made the legal issue irrelevant or impossible to resolve. The most common example of mootness is the death of one of the parties to the case. So if you sue your neighbor to stop him from planting trees on your property and he dies during the lawsuit, the case is probably moot. Your neighbor can no longer plant trees on your property, so you don’t have any injury anymore and there’s nothing for the court to decide.
Another very common example involves changes in law or policy during a legal case. Let’s go back to the example of your asshole neighbor. Assume that your town passes a law saying that he can plant trees on your property. You sue to challenge this law. You have standing because he’s going to be allowed to invade your property, so that’s all good. And the case is ripe for review, because your neighbor has already rented a dump truck and has it stationed on the edge of your property. Now assume that during your lawsuit against your neighbor, the town changes the law, and makes it so that your neighbor can’t plant trees on your property. Well, now the case is moot. You can’t challenge the law, because it no longer exists.
29. Tiers of Scrutiny:
When the Supreme Court hears cases involving Constitutional rights, it typically applies one of the three levels of scrutiny: (1) strict scrutiny, (2) intermediate scrutiny, and (3) rational basis review. Each of these levels of scrutiny calls for a different test to determine whether the law in question is constitutional. I’ll go through each level of scrutiny in detail but for simplicity’s sake, I’ve listed them according to how difficult they are to satisfy. That is, strict scrutiny is the highest level of scrutiny, meaning that if a law is tested according to this standard it will almost always fail and be deemed unconstitutional. Rational basis review, on the other hand, is the lowest level. Laws tested according to rational basis review will almost always be constitutional.
30. Strict Scrutiny:
The highest level of scrutiny in American constitutional law. In order for a law to be deemed constitutional when strict scrutiny is applied, it must be: (1) justified by a compelling government interest; (2) narrowly tailored to achieve that government interest; and (3) the least restrictive means of achieving that government interest. If the law in question fails any of these parts of the test, it is deemed unconstitutional. Naturally, this is a high bar, and the majority of laws subjected to strict scrutiny will fail. Thus, the big issue in many Supreme Court cases is when strict scrutiny should apply. The Court isn’t always consistent on this, but it normally applies strict scrutiny in two types of cases: (1) when the law in question affects an individual’s fundamental constitutional rights (for example, the right to vote, or the right to freedom of speech, etc.); and (2) when the law in question discriminates against people based on a “suspect classification,” such as their race or their nationality.
31. Intermediate Scrutiny:
A lower level of scrutiny than strict scrutiny, and therefore easier to satisfy. To satisfy intermediate scrutiny, a law must be: (1) directed at an important government interest; and (2) substantially related to that interest. At the Supreme Court, intermediate scrutiny is often applied in cases where a law discriminates against individuals on the basis of their gender.
32. Rational Basis Review:
The lowest level of scrutiny, very easy to satisfy. To satisfy rational basis review, a law must be rationally related to a legitimate government interest. This is the most common form of scrutiny, and nearly every law that exists in modern America would pass this test.
33. Consolidated Cases:
Sometimes, two or more cases present the same legal question with different sets of facts. In these cases, the Court will often consolidate the cases for efficiency, which means that they are heard together at oral argument. These are sometimes referred to as “companion cases.” When they are eventually decided, the Court’s opinion generally refers to the name of only one of the cases and leaves the rest as companions.
34. Textualism:
Textualism is a theory of legal analysis in which the words of a law reign supreme. A textualist judge will generally try to make rulings solely based on the language used in a particular law, and will try to give the words the definitions that they would have had when the law was first passed. This often comes up in the context of the U.S. Constitution, where textualists argue that the words used in the Constitution should be interpreted in the way that they would have been understood by the people who wrote the document. The main question for a textualist is, essentially: what did the law mean when it was drafted and passed?
35. Extra-Textualism:
As far as I know, this word is my own creation. You’re probably thinking, who cites to the definition of a word they made up? How arrogant can this guy be? I promise, I’m not going to be doing this often. It’s just that there isn’t really a single coherent term to describe the opposite of a textualist. In reality there are several different schools of thought, each of which is slightly different. We’re not going to talk about all of them. Instead, we’re just going to lump them all together and define an extra-textualist as someone who believes that the text of a particular law is a good starting point, but isn’t the end of the story. An extra-textualist might look at other things, such as the comments made by legislators when the law was first passed, the purpose of the law, or the evolving meaning of the words used in the law, and try to determine what the law means now.
Wow, you made it all the way to the end. Color me impressed. No, unfortunately there’s no reward, except the satisfaction that comes from learning a whole bunch of interesting new words. Go out and wow your friends with your big, sexy vocabulary. Oh, and there’s no quiz either. I don’t have time for that shit, and neither do you.
But, in any case, if you’re still here at the end, consider yourself prepared to jump right into the world of Supreme Court case law. Head on over to the Blog section, pick out one of the reviews, and get started!