While the Term is under way, from October through June, we confer on review petitions generally at one- or two-week intervals. The number of petitions for review calendared for each standard conference runs in the 100 to 300 range. In all, the Court currently receives between 6,000 and 7,000 requests for review annually.
How do we manage those thousands of pleas for review? Typically, we put less than 15 percent of them to a vote. I will describe, a bit later, just how we reduce the large conference list down to a relatively slim list of cases the Court will actually discuss in conference. First, I will tell you the voting choices we have.
Most often, the vote is simply to grant or deny review. (It takes four votes—one less than a majority—to grant a petition for review.) If review is granted, we schedule the case for full briefing and oral argument. But we have other options. We may decide to hold on to a case—to defer action on the petition temporarily, pending the decision in another case, already granted review, presenting the same or a related issue.
Or, the Court may relist a case for a later conference because one or more of the Justices wants to give further thought to his or her vote, or perhaps wants time to prepare a dissenting opinion disagreeing with the Court’s decision to deny review. (It happens sometimes—indeed, it is the definition of success—that a dissent from a denial of review is never published, because the draft dissent, when circulated in-house, produces the very effect the writer seeks: it leads one or more Justices to rethink the matter and supply the vote or votes necessary to grant review. Some of my favorite opinions fall in that category. They are not available for you to read, because they succeeded in changing the public announcement from review denied to review granted.)
In many cases each Term, the Court vacates lower court judgments and remands the case to the court from whence it came, for fresh consideration in light of a recently released Supreme Court decision, one that sets binding precedent bearing on the remanded case. To take a typical example, after deciding, some Terms ago, that the death penalty for a person under age eighteen was unconstitutional, we remanded several other cases presenting the same issue, so that lower courts could apply our decision to those cases. Since then, we have held that juveniles, because of their immaturity, may not be sentenced to life without the possibility of parole, even when convicted of murder.
Occasionally, the Justices invite the views of the solicitor general before voting on a review petition. The solicitor general is the Department of Justice officer responsible for representing the United States in the Supreme Court. When we call for the solicitor’s views in a case in which the United States is not a party, the solicitor acts as a true friend of the Court; after consulting with federal executive agencies and officers with relevant information and expertise, the solicitor general offers his views on the importance or unimportance of the question presented to the sound development of federal law. Often, but far from always, we follow the solicitor general’s views on whether to grant a petition for review. I would not call the solicitor general, as some legal writers have, the “Tenth Justice.” He does not attend our conferences. The Court has no conversation with him that is not on the public record.
About a dozen times a year, the Court finds a case important, yet the answer so clear that we vote to decide it summarily, based on the written petition for review and the brief in opposition to review, without further briefing or oral argument. In the mid-1970s, a colleague and I had that exhilarating experience when we petitioned the U.S. Supreme Court to review a judgment of the Utah Supreme Court. Our clients were gainfully employed women who had been laid off from their jobs because their employer was reducing its workforce. The women sought other paid work, but were unsuccessful in that endeavor. They were some weeks pregnant at the time of their layoff and new job search.
A Utah law in those bygone days absolutely denied unemployment compensation to pregnant women. The Utah Supreme Court upheld the law, declaring that the Constitution’s Due Process and Equal Protection Clauses did not rule out denying unemployment compensation to pregnant workers. Once a woman became pregnant, the Utah court apparently supposed, she could not be considered a true member of the labor force. She was, or would soon be, no longer ready, willing, and able to work.
The U.S. Supreme Court found no need for a full-dress presentation. It reversed the Utah judgment unanimously and summarily, holding that Utah’s denial of unemployment compensation to able-to-work pregnant women was clearly unconstitutional. Winning that way—without filing detailed briefs or presenting oral argument—is a lawyer’s dream come true. (For those who are golfers, it is like getting a hole-in-one on the front nine.)
Returning to how we manage the large numbers of review petitions, a few days before each conference, the Chief Justice circulates a “discussion list” selecting from the many pages of petitions scheduled for conference the dozen or so he thinks worthy of discussion. Any Justice, the next day, may add other cases to this list. Petitions no Justice asks to discuss are denied automatically. That is the fate of some 85 percent of all petitions. Cases placed on the discussion list will be granted review, as I just mentioned, only if at least four Justices so vote.
Every petition for review, no matter how humble, is summarized and explained in a law clerk’s memorandum. All of the current Justices, save Justice Alito, participate in a pooling of resources for consideration of petitions for review. Justice Alito and his clerks review all petitions independently, inside the Justice’s chambers. The rest of us combine our law clerks (each Justice has four) in a pool and the Chief Justice’s administrative aide divides the review petitions evenly among the eight chambers. My law clerks tell me they spend about one-third of their time on petitions for review, more at the beginning of their clerkships, a little less as they become skilled in digesting lower court opinions and review requests.
The Justices, in turn, spend many hours deciding what to decide. We read the law clerks’ memoranda with the judgment one gains from experience with the law and life, and with the Court operating as a collegial body. When necessary, a Justice will personally check the petition for review and the brief in opposition and do whatever other homework she (or he) finds appropriate to determine whether a case is fit for the Court’s consideration.
Since 1988, the Court has had almost complete control over its docket. Before then, the Court was obliged to take up cases falling into certain categories—it had little choice in close to 20 percent of the cases set for full briefing and oral argument. Congress, with the Court’s enthusiastic endorsement, eliminated most of the “must decide” cases, commencing with the 1988 Term.
Cases we are still obliged to hear are few and far between. They are mainly certain Voting Rights Act cases, and original jurisdiction cases in which the Court serves as the tribunal of first and last instance. (Original jurisdiction cases generally involve controversies between two states—or a state and the United States—often over boundaries, land ownership, or water rights. An example from several years ago, New Jersey and New York crossed swords over ownership of the land-filled portions of Ellis Island, the island that once served as the admissions station for immigrants from Europe to the United States. New Jersey prevailed in that fray.)
With the elimination of most of the Court’s mandatory jurisdiction in 1988, and, even more, the Court’s clear recognition that it ought not try to serve as an error-correction instance, the controversies the Court calendars for argument have diminished in number from about 140 per Term to between 70 and 80 per Term. With more time, the hope is, one can write better—or at least more comprehensible and hopefully shorter—opinions. (It does take time to write short.)
More time also helps to achieve less division among the Justices. In recent Terms, the Court has ruled unanimously, at least as to the bottom line judgment, in about 40 percent of the argued cases. That is a point the U.S. press little notes—the fact that we agree, without dissent, in a fairly large percentage of the cases we take up. In c
ontrast, the Court divides sharply, 5–4, in fewer than 25 percent of the argued cases.
Press reports on the Supreme Court’s actions sometimes exaggerate the significance of an order denying review. I read from time to time that the Court affirmed or upheld Decision X, when the case the report said we affirmed didn’t even show up on a conference discussion list. A denial of review, it is important to understand, reveals nothing at all about what the Court would do if it took up the case for review.
We generally await a deep lower court “split”—one unlikely to repair without Supreme Court intervention—not simply to keep our caseload down. Awaiting decisions from several courts can advance our understanding of the importance of an issue, by giving us a sense of the different factual contexts in which the issue arises and the range of lower court opinions on the proper resolution.
A major reason why we resist grants of review when there is no split is the genuine respect we have for the able judges in the federal judiciary—the federal district courts and courts of appeals—and on state benches, too. Those judges are fallible, as all mortals are, but they strive to “get it right” and they generally do. And the Justices of the Supreme Court possess no greater wisdom than do judges on other federal benches. Some of the nation’s finest judges missed nomination to the High Court. Luck plays a large part in the selection of the particular nine who sit at any given time. On the Supreme Court’s place in the system, Justice Robert H. Jackson (who was a member of the Court from 1941 until his death in 1954, with time out to serve as principal prosecutor at the post–World War II Nuremberg trials) said it best: “We are not final because we are infallible, but we are infallible only because we are final.”
I turn now from how we decide what cases to take up for review to “the day in court.”
2. The Day in Court
The U.S. Supreme Court, as I have just said, labors long in selecting the cases it will take up for review but, unlike courts of appeals where litigants arrive as of right, the Court spends little time deciding which cases will be set for oral argument (all are, save for the dozen or fewer cases resolved summarily on the basis of the petitions for review and briefs in opposition). Nor do we debate the length of argument time. Cases calendared for argument, no matter how complex, routinely get exactly one half hour per side. When argument time is running out, there is a five-minute-warning light colored white, then a red light. When the red light appears on the lectern, time is up—lawyer and Justice alike must stop talking.
A keen observer of the Court, New York Times journalist Anthony Lewis, wrote this description of the current day in Court:
Oral argument does not play the part in the work of the Supreme Court that it did in the nineteenth century, when Daniel Webster [and other Bar luminaries] would argue a case for days. . . . The modern Supreme Court limits argument severely . . . to half an hour [per side]. But argument still has an important function. It is the one chance the Justices have to . . . grapple directly with the lawyers who represent the clashing interests before them. It is also a rare opportunity for the public to gain insights into the minds of those who actually make the decisions. More than any other officials in Washington, the Justices still do their own work, assisted only by a handful of young law clerks. To observe them as they question counsel in the courtroom is to see an extraordinarily open process, unaffected, human. In a capital puffed up with bureaucracy and public relations, the Court seems old-fashioned, small, personal. For the lawyers, oral argument is a direct opportunity to reach those nine minds—with an idea, a phrase, a fact. Not many cases are won at argument, but [a case] can be lost if a lawyer is unable or unwilling to answer a Justice’s question [honestly and persuasively].
I agree in full with Anthony Lewis’ observation, and could not better describe the role of oral argument.
In the most essential way, oral argument at the Supreme Court is what it generally is in other U.S. appellate tribunals, both federal and state. Oral argument is an occasion not for grand speechmaking, but for a conversation about the case, a dialogue or discussion between knowledgeable counsel and judges who have done their homework, a “hot bench,” as appellate advocates say—judges who have read first and foremost the decision we are reviewing, any statutes in point, next, relevant portions of the record, and other judicial decisions bearing on the case. Then we turn to the almost always long briefs filed by the parties and, depending upon their quality, the briefs of supporting, so-called friends of the court, amici curiae.
Some lawyers, I have been told, resent interruption of an oral argument carefully planned as a lecture or oration, and some judges ask few questions. Justice Harry Blackmun, who retired from the Court in 1994, and died in 1999, often recounted advice he was given by Justice Hugo Black in 1970, when Justice Blackmun was appointed to the Court: “Harry,” Justice Black cautioned, “never ask many questions from the bench because if you don’t ask many questions, you won’t ask many foolish [ones].”
But it seems to me a loss of a precious opportunity if an advocate can do no more with her oral argument time than recapitulate the briefing. She will serve her client and cause better, I believe, if she is agile—if she welcomes and responds to questions that may uncover what is in the decisionmakers’ minds, while remaining alert to opportunities to use a question as a springboard to advance a key point. So I do not follow Justice Black’s advice. And in that, I am hardly alone.
Questions from the bench give counsel a chance to satisfy the Court on matters the questioner, at least, thinks significant, issues the Court might resolve less satisfactorily without counsel’s aid. Sometimes, it is true, a Justice asks a question with persuasion of a colleague in mind, or at least to stimulate the colleague’s thinking; at such times, the lawyer may sense she is being talked through, not to. Other times, the questioner may be trying to cue counsel that an argument pursued with zeal is a loser, so counsel had best move on or shift gears. Counsel too intent on adhering to a prepared script or outline may miss the cue.
There is, I appreciate, a difference in the dynamic of a nine-member Court and that of the typical three-judge appellate bench. A conversation accommodating clarifications, interjections, and often interruptions, readily managed among four (counsel and three judges), is less feasible among ten. (The U.S. Supreme Court, you no doubt know, always sits en banc, barring recusals, with all nine Justices participating in every case. We never divide into panels for any purpose.)
Unlike appellate forums in many countries, notably those with a civil law base like Germany or Italy, for example, appellate courts in the United States do not assign a reporting judge to wield the laboring oar in preparing a case for decision. Each of us prepares fully on our own. At oral argument, the Chief does not decide who may speak or when inquiries may be made. Any Justice may ask a question whenever he or she pleases within the allotted argument time.
Though the format is not flawless (some would prefer more time than a half hour per side, and fewer questions), argument at the Court largely succeeds in its mission. It more than occasionally reduces or diminishes confusion and pares down or sharpens the issues in conflict. And it gives counsel an opportunity to face the decisionmakers, a last clear chance to convince the Justices concerning points on which the decision may turn. (In typical civil law courts, in contrast, appellate advocates ordinarily speak with barely any interruption. I would find it hard, as a judge, to listen to lawyers’ speeches so passively.)
We do not allow cameras in the courtroom, but we do promptly provide written transcripts and audiotapes of arguments.
I move on, finally, to decisionmaking.
3. Reaching Decisions
To reach decisions, in a typical two-week sitting period, the Court meets each Wednesday afternoon to discuss the preceding Monday’s cases, and each Friday, both to dispose of accumulated petitions for review, and to discuss the cases heard the preceding Tuesday and Wednesday. On the second Friday afternoon of a sitting period, the Chief Justice circ
ulates opinion-writing assignments made by him when he is in the majority; and when he is not, he conveys to the full Court the assignments made by the most senior Justice in the majority.
At all Court conferences, the Chief speaks and votes first; the junior Justice speaks and votes last. Our former Chief, Chief Justice Rehnquist, described his disappointment, when he was the junior Justice, that his sage comments at conference were not listened to with rapt attention, because “[dispositive] votes had [already] been cast [higher] up the line.” He reported “with newfound clarity,” however, having “risen from ninth to seventh to first in seniority,” that his idea for “more of a round-table discussion” was academic: “fine in the abstract,” he said, but unlikely to “contribute much in practice, and at any rate[,] doomed by the seniority system to which the senior Justices naturally adhere.”
Yes, there is sometimes a certain impatience, an expectation of brevity, when the vote comes round to, say Justice Sotomayor, and there is already a clear majority for one side or the other. But last place, now the lot of Justice Kagan, has an occasional suspense-breaking moment, when the ninth vote ends a tie. Justices who speak later do have one advantage. They have an opportunity to adjust their statements to take account of views expressed earlier by others. To do that effectively, one must be both well prepared and a good listener.
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