Supreme Court Essay, Research Paper

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.