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美国最高法院通识读本 [:1702690386]
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美国最高法院通识读本 Chapter 5The Court at work (2)
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In addition to giving the Court authority to control its own docket, Chief Justice Taft also left a legacy in marble: the building into which the justices moved in 1935, five years after Taft’s death and 145 years after the Supreme Court had first convened. Acquiring a home of its own would have both symbolic and practical importance for the Court, signifying its role at the head of a coequal branch of government, and finally providing chambers for the justices, who until then had worked from home.
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Until his death, Chief Justice Taft was actively involved in the project as chairman of the congressionally-authorized Supreme Court Building Commission. He proposed the site, across the street from the Capitol’s east front and next to the Library of Congress. He chose the architect, Cass Gilbert Sr., a noted architect who had designed many important public buildings, including both the United States Custom House and the federal courthouse in New York City. Gilbert’s sixty-six-story Woolworth Building, also in New York, remained the tallest building in the world for nearly twenty years after its completion in 1913.
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The chief justice told Gilbert to design “a building of dignity and importance,” and the architect followed his instructions. The building is a Greek temple in classic Corinthian style, with sixteen marble columns at the main west entrance. The pediment contains a sculpture group representing “Liberty Enthroned, guarded by Order and Authority.” Until 2010, visitors to the Court climbed the stairs from the front plaza and entered the building under the words “Equal Justice Under Law,” carved on the architrave. Over the objection of some of his colleagues, who regarded the measure as unnecessary and its symbolism unfortunate, Chief Justice Roberts ordered the front entrance closed for security reasons. Visitors now enter through a newly constructed screening area under the stairs.
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7. The laying of the cornerstone of the Supreme Court Building, October 13, 1932. Chief Justice Charles Evans Hughes presided. Chief Justice Taft, who was responsible for the building, and Cass Gilbert Sr., who designed it, had both died.
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The courtroom itself, at the end of a main-floor corridor known as the Great Hall, is an imposing yet unexpectedly intimate space, measuring eighty-two by ninety-one feet. The lectern where a lawyer stands when arguing a case is surprisingly close to the justices on their raised bench. Lawyers who have attained a certain comfort level at the Court sometimes say that when an argument is flowing well, it can almost seem as if they and the justices are engaged in conversation. In addition to seats reserved for members of the Supreme Court bar, the courtroom has seats for three hundred members of the public, who can attend arguments on a first-come, first-served basis. The Court maintains two public lines, one for tourists who simply want to observe the Court in action for a few minutes, and one for those who want to attend an entire hour-long argument.
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8. Taken from above, this unusual view of the Supreme Court chamber shows the slightly curved bench. The seats in front of the bronze railings are reserved for members of the Supreme Court bar.
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The Court’s public argument sessions represent only the tip of the iceberg of the process of deciding cases. The justices sit to hear cases only for approximately forty days a year. They sit in twoweek blocs (Monday, Tuesday, and Wednesday, usually only in the morning) in each month from October through April. Unless the Court directs otherwise, an argument lasts for one hour, thirty minutes to a side. On this schedule, the justices can hear about eighty cases during a term.
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Experienced lawyers know to expect many interruptions. It is not unusual for the justices to ask dozens of questions during an argument. The Court’s rule regarding argument informs lawyers: “Oral argument should emphasize and clarify the written arguments in the briefs on the merits. Counsel should assume that all Justices have read the briefs before oral argument. Oral argument read from a prepared text is not favored.” Successful Supreme Court advocates are not only fast on their feet; they have thought deeply about the place their case occupies in the broader legal universe, and they understand that what the justices want from the argument is assurance about the larger consequences of ruling for one side or the other. What are the likely implications for the next case, and the case after that? The justices see themselves as engaged in an exercise much more consequential than resolving a dispute between two warring parties. To test the implications of a lawyer’s argument, justices will often vary the actual facts in order to pose intricate hypothetical questions—to which “Your Honor, that is not my case” is not an acceptable answer.
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Many of the lawyers who argue before the Court are familiar to the justices as repeat players, appearing several times each term, year in and year out. Prominent among this group are the members of the Office of the Solicitor General, a unit in the Justice Department that represents the federal government in the Supreme Court. The solicitor general, required by statute to be “learned in the law,” is nominated by the president and confirmed by the Senate. Aside from the solicitor general’s principal deputy, the other two dozen lawyers in the office are civil servants who often remain on the job through several presidential administrations. Many are former Supreme Court law clerks who, when they do leave the office, may go on to join established Supreme Court practices or to develop one of their own. One alumnus of the solicitor general’s office who followed this path with notable success is Chief Justice Roberts.
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9. This is a “day call,” the calendar for the day’s arguments. Here, the argument was Bush v. Gore, the case that was to determine the outcome of the 2000 presidential election. The two presidential contenders were each represented by experienced Supreme Court advocates, Theodore B. Olson for Governor Bush and David Boies for Vice President Gore. Joseph P. Klock Jr., arguing on behalf of Florida’s secretary of state, Katherine Harris, was making his first Supreme Court argument. The justices allotted an extra thirty minutes beyond the usual one hour.
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While argument sessions present the Court’s public face, the Court’s substantial work takes place for the most part behind the scenes. It begins with the case-selection process. In recent terms, the Court has received about eight thousand petitions for review. These are called petitions for a writ of certiorari, a Latin word meaning to be informed of or made certain of. More casually and commonly, requests for Supreme Court review are referred to as cert petitions. The Court’s rules require a petition to follow a particular format. First come the “questions presented for review,”which “should be short and should not be argumentative or repetitive.” The entire presentation must be succinct, at no more than nine thousand words, not counting an appendix that contains the lower courts’ opinions. Unless the Court grants an extension, the petition must be filed within ninety days of the judgment that is being appealed.
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The Court’s disposition of these requests is a matter of complete discretion. (A small subset of cases reaches the Court not as cert petitions but as “jurisdictional statements.” As a technical matter, these require the justices to take some action: either dismiss the appeal; decide the case summarily, without opinion; or “note jurisdiction” and hear the case, proceeding as they would with any other case. The jurisdictional fine points are beyond the scope of this book. Suffice it to say that this once important category of“mandatory appeals” is now limited almost entirely to cases arising under the Voting Rights Act. In the mid-1980s, Congress yielded to the justices’ request to eliminate most of the other mandatory categories, leaving the Court with even more discretion.)
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Rule 10 of the Court’s rules informs petitioners that “review on a writ of certiorari is not a matter of right, but of judicial discretion” and that a petition “will be granted only for compelling reasons.” The rule then provides examples of “the character of the reasons the Court considers.” The examples center around the existence of a conflict among the lower federal courts or the state courts on “an important federal question.” A provision of the Internal Revenue Code or any other federal statute ought to mean the same thing in the First Circuit, which sits in Boston, as in the Seventh Circuit, which sits in Chicago. By the same token, a clause of the United States Constitution ought not to be interpreted differently by the Supreme Court of California and by New York’s highest court, its Court of Appeals. (State courts, of course, are free to interpret their own state’s constitutions to give more protection—but not less—to individual rights than the U.S. Constitution provides.) Lawyers striving to persuade the Supreme Court to take a case try hard to demonstrate that a conflict of the sort discussed in Rule 10 actually exists. Even so, whether the question of law is sufficiently “important” to warrant the Court’s attention is completely up to the justices.
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By a customary “rule of four,” it takes the votes of four justices to accept a case for argument and decision—to “grant cert.”Since four is, of course, one short of a majority, this necessarily evokes strategic behavior in close cases about which justices feel particularly strongly. Suppose four justices are persuaded that a petition should be granted because they believe the lower court’s decision was seriously mistaken. If they are uncertain about the eventual availability of a fifth vote, they might pass up the opportunity to grant the case, rather than have it decided in a way that creates the “wrong” rule for the entire country. Political scientists call this a “defensive denial.” More often, however, justices may view the eventual outcome as less important than the need to resolve a conflict among the lower courts, particularly in cases of statutory interpretation. If Congress disagrees with the Supreme Court’s decision in a statutory case, it remains free to overturn the decision by amending the statute.
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Sifting through thousands of petitions a year in order to select the dozens that will be granted is a daunting task for a ninemember court. In the mid-1970s, with the number of petitions growing rapidly, the justices found a way to lighten the load by organizing their energetic young law clerks into a “cert pool.”Under this arrangement, each petition is reviewed by a single law clerk on behalf all the justices who subscribe to the pool. This clerk writes a memo that summarizes the lower court decision and the arguments for and against review, concluding with a recommendation. The recommendation is only that. Most justices in the pool (all but one or two in recent years) assign one of their own four law clerks to review the pool recommendations from the individual justice’s own perspective. Even so, the cert pool has come in for criticism. Critics maintain that the system not only increases the likelihood of missing important cases, but that it tends to exacerbate a built-in bias toward denying cases. Under this theory, law clerks are afraid to embarrass themselves with a recommendation to grant, either because the justices might reject the recommendation or, even worse, might accept the case only to find that a procedural flaw requires a belated dismissal. Defenders of the system maintain that these concerns are exaggerated. They say that any issue of real importance is bound to reach the Court multiple times, and will be noticed eventually.
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A more subtle critique—actually, more of an observation—of the quality of the Court’s agenda-setting process comes from scholars who point out that the cases the Court adds to its docket tend either not to reflect the issues that the public perceives as the most important, or to represent such an atypical slice of a big issue as to offer little help in resolving more typical cases. In 2007, for example, the Court decided its first case in a decade about the free-speech rights of public school students, an issue of substantial concern in communities across the country. But the Court chose an idiosyncratic case, Morse v. Frederick, concerning the punishment of a student who displayed an ambiguously worded banner that might or might not have expressed a favorable view on illegal drug use. The eventual decision provided little guidance to school districts dealing with much more common disputes over student speech about politics, school policy, or sexual orientation. As one leading Supreme Court scholar, Sanford Levinson, has noted, Supreme Court cases necessarily deal only with the “litigated Constitution,” those provisions that are open to interpretation and become fodder for lawyers and judges. At the same time, the “hard-wired Constitution,” structural elements of great significance like the over-representation of small states in the United States Senate, remain beyond the reach of any court.“The fixation on the litigated Constitution,” Levinson writes, leads people to “overestimate the importance of courts and judges, for good and for ill.”
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A denial of review neither sets a precedent nor indicates that the Court agrees with the lower court’s judgment, points that are often misunderstood. There are many reasons that a petition might end up as “cert denied.” These include not only the occasional defensive denial but, more often, the absence of a real conflict or even a real legal issue (many petitions attempt to reargue the facts of a case) or the justices’ conclusion that a case with an interesting issue is nonetheless a “poor vehicle” due to any of a number of procedural problems.
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