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.