The Supreme Court System
The justices determine which cases to take. They never explain the reason for their choices.
Whether or not a case is accepted strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment, Rehnquist wrote in The Supreme Court: How It Was, How It Is, his 1987 book about the court.
Important factors, he said, are whether the legal question has been decided differently by two lower courts and needs resolution by the high court, whether a lower-court decision conflicts with an existing Supreme Court ruling and whether the issue could have significance beyond the two parties in the case.
For example, the justices likely accepted the sexual-harassment case brought by Paula Jones, a former Arkansas state employee, against President Clinton because it will test the important question of whether a president should have to defend himself against a lawsuit while in office.
They also agreed for the term that began Monday to review a case challenging the constitutionality of a federal handgun-registration law, no doubt in part because lower courts are divided about whether the law, which requires sheriffs to check a purchaser’s background, unconstitutionally burdens local officials.
But the justices do not automatically take on all cases posing significant societal dilemmas. Last June, for example, they refused to hear one on the legality of college affirmative action programs. The case did not garner the four votes needed to accept a petition for review and to schedule oral arguments on it.
Before those votes are cast in the closed-door session, however, a case must pass muster with several of the youngest, least experienced lawyers in America — the 36 law clerks who serve the nine individual justices and who, in effect, are their staff for a term. These clerks, most often four to a justice, usually are recent law school graduates and typically the cream of their Ivy League schools.
It is the clerks who first winnow the 7,000 or so annual petitions, settling on the select few that they believe the justices themselves should consider. There is no set number or quota for each week’s conference.
With the clerks’ memos in hand and in the closed conference room, the justices summarily reject most of the appeals. They discuss petitions flagged by one or more of the justices. Then, according to justices’ public accounts over the years, they vote aloud, one at a time by seniority but starting with the chief justice.
While the chief justice leads the meeting, the most junior justice, now Stephen G. Breyer makes handwritten notes that will be passed to a clerk for public announcement of disposition of petitions. Rehnquist is known for running a brisk session. Bam! Bam! Bam! one associate justice said in describing the group’s swift disposition of cases.
Among the richest sources of inside information about the court are the papers of the late Justice Thurgood Marshall (1967-1991). They describe negotiations as cases moved through the process. They show, for example, that only by the bare minimum of four votes did the justices accept a case that eventually yielded an important 1990 ruling on religious freedom.
As is his responsibility by tradition, Chief Justice Rehnquist laid out the facts of the case and lower court rulings on it: Two Native Americans had been fired from their jobs at a private drug rehabilitation center after ingesting peyote, a cactus that contains the hallucinogen mescaline, as part of an ancient Indian religious ceremony. The men were denied unemployment compensation by the state of Oregon because officials said they were fired for illegal conduct. State drug law prohibited use of peyote.
The men were never charged with a crime, and they sued the state, contending that denial of unemployment compensation violated their right to religious freedom. The Oregon Supreme Court sided with them, ruling that the anti-drug statute should not outlaw religious use of peyote. The state appealed to the Supreme Court.
When the case first arrived here in 1987, Rehnquist voted to hear it. Next in seniority and entitled to the second vote was William J. Brennan Jr., who apparently was concerned that the high court might overturn the Oregon Supreme Court ruling and voted no.
Next came Byron R. White, who voted yes, the second of four votes needed to accept. Marshall voted no. Harry A. Blackmun said he would vote yes if three other solid votes were committed to hearing it. This vote to join-3, as it is called, means that a justice is ambivalent but willing to vote yes if three colleagues want the case. Lewis F. Powell Jr., John Paul Stevens and Sandra Day O’Connor voted no.
Then it was time for the last and then-newest justice. Antonin Scalia voted to take the case, ensuring that with Blackmun’s join-3 vote, the state’s appeal of an order that it must pay the men unemployment compensation would be reviewed.
The case eventually would result in a decision against the men. The justices overturned the state supreme court decision saying there is no violation of the First Amendment right of free exercise when a general state law incidentally infringes on religious practices.
The majority opinion, written by Scalia, upset religious groups across the spectrum and prompted Congress in 1993 to pass legislation to reverse the ruling’s legal effects and enhance protection for minority religious practices. That effort marked one of the rare times that Congress successfully negated the effects of a court ruling by saying laws infringing on religious practices must meet a very strict compelling interest test. A few years earlier, Congress had failed to outlaw flag burning, which the Supreme Court had ruled was a form of free speech protected by the First Amendment. When Congress first responded, in 1989, by passing a law prohibiting flag desecration, the court ruled it unconstitutional. Then when Congress tried in 1990 to amend the Constitution, the effort never garnered the necessary two-thirds vote in the House and Senate.
Unlike the secret meeting to select cases, the court’s next step is quite public. Oral arguments occur in the Supreme Court’s stately, burgundy draped gold-trimmed courtroom before a first-come, first-seated public audience. On Mondays, Tuesdays and Wednesdays, starting in October, the justices listen to lawyers present each side of two or three cases a day. In the 1980s, when the court accepted more cases, the justices heard arguments in four cases a day.
Limited to 30 minutes each, one lawyer from each side makes his or her Best arguments. The scene is tense and dramatic as the justices, wearing black robes and sitting in individually sized, black leather chairs, vigorously challenge the lawyers, sometimes consuming large parts of their time allotments.
Even experienced appellate advocates at times become flustered or freeze as they stand at the lectern below the long bench. Still, a lawyer’s appearance before the highest court can be the highlight of a career. Lawyers have been known to frame and hang the white quill pens they receive as souvenirs.
You don’t have to be Clarence Darrow … to successfully argue a case before us, Rehnquist said in a speech last May. But you do have to be prepared…. And you must expect hypothetical questions posing slightly different factual situations from yours and be prepared to answer them.
When the justices pose different hypothetical situations, they are not necessarily trying to divert the lawyer. They are looking at ways their decision might be applied in the future. The justices also may use the occasion to influence other justices, bolstering one side and undermining the other.
During arguments about a Michigan law that led police to confiscate a car in which a man had been caught having sex with a prostitute, one question was how an innocent co-owner of property — the man’s wife, in this case — could protect her interest in the property.
When assistant solicitor general Richard Seamon rose to argue as a friend of the court in favor of Michigan and its forfeiture law, the justices pressed him on his contention that the wife could have better protected her interest as co-owner of the car could.
What was she supposed to do? Justice David H. Souter asked, clearly sympathetic to the plight of the twice-burned wife.
Seamon said the wife can make out the defense as an innocent owner by showing that she took all reasonable steps to prevent it.
You’re not taking the position that she was supposed to call the police and say, you better watch out for such-and-such a car because my husband is engaging in illegal acts in it? Souter asked.
Seamon reluctantly acknowledged that the federal government believed that a co-owner should report illegal activity involving the property, even if a wife must snitch on her husband.
So it’s the position of the solicitor general’s office that wives should call the police when their husbands are using prostitutes? Justice Anthony M. Kennedy asked.
The laughter in the courtroom, which appeared to be coming from the justices’ clerks, prompted Kennedy to add, Don’t let the laughter of clerks who have never even argued a case in a municipal court deter you from your answer.
Eventually, the confiscation was upheld 5-4, with Souter and Kennedy among the dissenters.
While the give-and-take usually is dominated by arcane legal references, occasionally a case inspires the justices to use more common vernacular.
When they reviewed privacy issues surrounding a school district requirement that student athletes submit urine samples for drug testing, locker room life was topic A. Rehnquist referred to guys walking around naked, and Breyer said providing a urine sample might not be so intrusive since urination is a fact of life.
The lawyer representing a student who had protested the testing conceded that everyone indeed urinates. Then, in a break from decorum, the lawyer, facing tough questioning, blurted, In fact, I might do so here. The school district won 6-3.
For all their attendant drama, oral arguments are only one part of the decision-making process. There also are written briefs submitted by each side — the views of the solicitor general, who is the federal government’s top lawyer before the court, and other amicus curiae, or friends of the court.
The justices vote, sometimes more than once because they may switch sides during the process.
The first vote on a case is taken in the week of oral arguments. For cases heard on Mondays, the justices vote on Wednesday afternoon, again in the secrecy of their conference room. For cases heard on Tuesday and Wednesday, they vote Friday.
After the vote, the most senior justice in the majority assigns the task of writing the majority opinion. The most senior justice on the losing side decides who will write the main opinion for the dissenting viewpoint. The other justices are free to write their own statements if they wish, but the majority opinion speaks for the court.
Sometimes, justices say, writing an opinion that all justices in the majority will sign is difficult. Sometimes, justices discover through writing an opinion and trying to justify it with prior court rulings that the case was not what it seemed. On occasion, the chief justice has thrown up his hands as the majority switched from its original position.
Referring first to Scalia by his nickname, Rehnquist wrote: After Nino circulated his draft opinion coming out to ‘reverse’ rather than to ‘affirm,’ I reassigned this case to myself. I thought that in keeping with previous practice, whether or not well understood, it was desirable that someone at least makes an effort to write out the view on the merits, which had commanded a majority at conference. After having made that effort, I have decided that Nino was correct…. I therefore assign the case back to Nino and join his revised opinion.
Stevens, known for his singular legal approach regularly jokes about losing the majority as he writes the formal opinion.
In a 1990 criminal case, he wrote to Rehnquist, Dear Chief: Having been a specialist in converting draft majority opinions into dissents since my first term on the court 1975, I can assure you that I will produce a draft ‘with all deliberate speed.’ Stevens indeed did lose the majority, and a few weeks later when Rehnquist announced the court’s opinion, Stevens was in the dissent.
In many instances, the justices may be perfectly pleased with what the author of the majority opinion is writing but will offer thoughts for variations on the legal analysis or language. The author’s task is to preserve his or her viewpoint, accommodate suggestions if it means keeping the majority and not to turn off others in the group.
Based on what outsiders are able to discern from the justices’ public statements and from the opening of once-private papers of some justices, the justices do not trade votes during this process. Rather, they engage in a constant conversation by way of memos.
Justice O’Connor once pointedly observed of this process, as she herself was trying to induce another justice to change his draft opinion, I realize that it is much easier to cast suggestions over the chef’s shoulder than it is to have one’s head in the oven.
Law clerks are heavily involved in this stage, writing draft opinions, researching past cases that will support a ruling, even strategizing. For example, as the justices were deciding whether to uphold an Indiana law against nude dancers in 1991, in the face of a First Amendment challenge, a clerk wrote to Marshall:
BRW Byron R. White, the senior justice in the dissent, has now circulated an opinion. I recommend that you join it. The chief’s majority opinion has gotten no support, but AS Antonin Scalia has circulated a concurrence that is quite as damaging as would be the chief’s. I therefore recommend that you join BRW’s dissent right away, for whatever momentum that might help build for the dissenters.
But whatever Marshall might have tried to do, it didn’t matter. Rehnquist prevailed in a 5-4 decision rejecting the challenge. The court said the law did not violate free speech rights.
The give-and-take can last for weeks and months. But fortunately, there is June, when the court traditionally wraps up its work.
Beginning in early May, the court stops hearing oral arguments and increases its public release of decisions. Rulings traditionally are handed down on Mondays, although as the court nears the end of the term, they are announced on other days, too.
The media are never told in advance how many opinions to expect on a given day. Reporters will be told whether it is a regular day, meaning four or fewer opinions, or a heavy day (five or more).
Returning to the very public forum of the courtroom, the justice who has written the majority opinion briefly announces the court’s ruling from the bench.
Justice White (1962-1993) made the tersest of summaries, giving the case number and saying it was on file in the clerk’s office. Today, many justices make comparatively lengthy bench announcements, giving the facts of the case, how lower courts ruled and details of the high court’s decision.
Last term, this last act produced a few dramatic moments. When Justice David H. Souter dissented from a ruling that gave states a major victory over Congress in an Indian gambling dispute, he took the unusual step of reading portions of his opinion from the bench, declaring that the majority opinion flies in the face of the Constitution’s text.
A few weeks later, Justice Ruth Bader Ginsburg, who before becoming a judge was a women’s rights lawyer, announced the court’s ruling that Virginia Military Institute’s exclusion of women is unconstitutional. In the opinion, she said she was relying on a major 1982 sexual equality decision by O’Connor, the only other woman on the bench. At that moment, Ginsburg looked up and exchanged appreciative glances with O’Connor.
As the court’s process ends and the justices begin their long summer vacations, public response begins.
Just last term, the ruling against VMI prompted The Citadel, a similarly situated military college in Charleston, S.C., to admit female students for the first time. Last month, VMI’s board narrowly voted to do the same next year.
Also, a court decision striking down two black-majority and one Hispanic-majority voting districts in Texas because they were drawn along racial lines meant the state had to draw new district boundaries and hold special elections this fall in 13 of Texas’s 30 congressional districts.
No matter how each term’s rulings change American government or individual lives, the nine justices usually remain detached, almost never commenting on their work but returning to their conference room each October to start the process again
Also, the justices review previous cases on a subject, prepare their own interpretations of the law or constitutional provision and sometimes, though rarely, turn to outside experts on the issue.
For example, one of the most controversial elements of the court’s unanimous decision in Brown v. Board of Education (1954), striking down the separate but equal doctrine long used to justify school segregation, was Chief Justice Earl Warren’s reference to sociological and psychological studies. The studies concluded that segregated schools stigmatized children.