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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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All cert petitions are presumed to be denied unless the justices take further action. The first step is to move a petition from what is known informally as the “dead list” and to place it on the“discuss list” for consideration at the justices’ weekly conference. The chief justice is in charge of the discuss list and runs the conference, at which the justices speak and eventually vote in order of seniority. (The same procedure applies to the discussion and vote on cases that were argued during the week.) The conference usually takes place on Friday (Thursday in May and June), with the “orders”—the list of cases granted and denied—being issued the following Monday. The Court typically provides no explanation for either a grant or a denial. But occasionally, the order list will include an opinion by one or more justices dissenting from a denial of certiorari and explaining why the case should have been accepted.
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By statute, a Supreme Court term begins on the first Monday of every October. But the justices’ active labor actually begins the week before, on the last Monday of September, when they meet in conference to consider the cert petitions that have accumulated over the summer months of recess. There is no statutory date for the term to end. The justices aim for the last week in June and nearly always achieve that goal. Barring an emergency, no arguments are held after the end of April, so the justices spend May and June working on opinions in any cases from the term’s seven argument sittings that remain undecided. (To keep this system running, new cases that are granted after January are not scheduled for argument until the following fall, after the next term begins.) Unlike many other courts that fall behind by carrying cases over from one term to the next, the Supreme Court remains rigorously current. Any cases the justices don’t decide by the end of the term must be set for a complete new argument in the following term. This discipline-imposing rule has the effect of influencing the justices to work particularly hard in June to finish all the term’s work. This in turn gives rise to the unflattering phrase, “June opinion,” to describe a hastily crafted opinion that still has a few seams showing.
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June often sees such a high proportion of a term’s most important decisions that many people assume that the justices somehow arrange to save the best for last. This is far from the truth. The Court usually begins to issue opinions in November and proceeds to hand down opinions throughout the term. But naturally, the least controversial cases, those that produce unanimous or nearunanimous decisions, get decided first. Complicated cases or those that, for one reason or another, produce numerous concurring and dissenting opinions take longer, perhaps much longer, and only the pressure of an impending July 4 weekend may spur the justices to make the last-minute compromises necessary to bring a decision out by the end of June.
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Opinions are announced in open court immediately before the start of the day’s arguments. The justice who has written the majority opinion delivers a brief summary. A dissenting justice who feels particularly strongly might follow with a summary of the dissent. The statements that justices make from the bench are not part of the official opinion, but the few points that a justice might choose to emphasize from a long opinion can be illuminating for those present. The courtroom announcements are the first official word that a case has been decided; unlike many other courts, the Supreme Court gives no advance notice that a case will be decided on a particular day. Once announced, the opinions appear within minutes on the Court’s website (www.supremecourt.gov). The Court also posts transcripts of the arguments on a daily basis. Each Friday, the website makes available the audio of the arguments the justices heard during the week.
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In recent years, the Internet has brought the Court much closer to the public than seemed possible even a few years earlier. Among other resources available on the website are the briefs filed in granted cases (these are posted through a cooperative arrangement between the Court and the American Bar Association) as well as a complete procedural history of each cert petition, whether granted or denied. With a few mouse clicks, people can now acquire information about the Court’s docket and operations that once required a trip to the clerk’s office.
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The ground floor of the Supreme Court Building includes a press room. The Court makes copies of petitions and briefs available to the press, and seats are set aside for reporters at all arguments. Television journalists are part of the Supreme Court press corps, but the Court does not permit television or other cameras in the courtroom. Justice David H. Souter once declared that television cameras would roll into the courtroom over his dead body. While few justices might express their objections that graphically, there were none on that occasion, or since, who leapt to television’s defense.
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