The Supreme Court System

.. tantly 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.

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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. Government Essays.