If I am the happiest camper, then your Dean, the Honorable Howard Markey, is truly extraordinary, for he can make even the most sober judge laugh. And that's why an invitation from him was irresistible to me. I have some prepared remarks of the Supreme Court's work ways. I hope the remarks will stimulate some questions because I would like to spend most of the time we have together in conversation with you.
So let me speak first of the Court's review granting process. Next, of oral argument, and finally of the way we reach decisions.
It was my very good fortune, unlike my two predecessors, Justice Souter and Justice Thomas, but just like my latest colleague, Justice Breyer, to be nominated and confirmed in the summer, in August, so that I could prepare for the late September conference. The conference at which the court disposes of all the petitions for review that have accumulated over the summer recess. No persons, other than the nine justices, enter the room when the Court is conferring and for that reason the junior justice has special assignments, though I did not serve coffee or tea. We recessed for refreshments; the chief ordered them and uses the special funds to which we all contribute. But the junior justice does answer the telephone, open the door, and most daunting of all chores, she transacts the orders of the day to the entourage from the press office that fills the room when the conference ends.
Numbers will explain why that record keeping job is fearsome for a newcomer. At last year's opening conference on September 26, the Court had over 1,600 petitions referred, to dispose of. In season we confer generally at one or two-weeks intervals, and at those conferences, the number of petitions runs in the few hundreds range. Typically we will grant or we will put on the discuss list, only about ten to thirteen percent of all of the petitions for review and then we will on that 10 to 13%, either grant, deny, hold, vacate or call for the views of the Solicitor General. The rest of them, the petitions that no Justice asked to have discussed would be denied automatically. My anxiety when I entered that first conference was a feeling that some of you have encountered when you took your first set of law school exams. Justice Thomas was by then a veteran and he helped me get the ropes down right through the first conference and even the second conference until I felt comfortable dealing with the Chief's fast pace and capable of doing the job without help.
Reviewing certiorari petitions is a large time consumer and it is not the easy work which some people outside the Court seem to think it is. I've heard, and in some quarters it is believed, that the law clerks slave over their pool memoranda, and they do. Every cert. petition, no matter how humble, will get a full pool memo summarizing and explaining what the petition is about. But the justices don't simply read those memos and follow the law clerks advice. People who think they do, who think that the law clerks are making the decisions, to quote Porgy and Bess's Sportin Life, "It Ain't Necessarily So." It is true that all of the Justices, except Justice Stevens, are part of what we call the cert. pool, but we read the law clerks memoranda with care and with judgment that comes from experience. When in doubt, we check the petitions and responses ourselves and we do whatever other homework is required to determine whether a case is cert. worthy.
The Court nowadays has almost total control over its docket. There are very few cases that we are obliged to hear and that is a fairly recent change. Until 1988 about 20% of the cases of the Court gave full consideration to whether it had an argument and no decision. About 20% of those were appeal cases mandatory jurisdiction. They are almost all gone so a jurisdiction is almost totally discretionary.
Our principal job, as we see it, is to keep the federal law fairly uniform - to resolve splits that arise among federal or state tribunals over the meaning of a federal legislative, executive or constitutional prescription. Last term was typical. About 70% of the cases that the Supreme Court decided involved splits of authority among either the Federal Courts of Appeals or state courts of final instance.
Press reports of the Court's actions sometimes exaggerate the significance of a denial of certiorari, a denial of a petition for review. I read from time to time that the court approved the lower courts decision in case X, when that case didn't even show up on the Court's discussion list. And I know from total experience the disappointment that a petitioning lawyer feels when we decline to take up the case for review, even though it presents a significant question of federal law. We generally await what we call a split of authority below, not just to keep our case load down. Returns from several other courts can enhance our understanding of the importance of an issue: the frequency in which the issue arises; the different settings; and the range of opinions on the proper resolution. One other reason why we generally wait for a split of authority is the genuine respect that we have for the able judges seated on state benches and in the federal judiciary. Those judges are fallible, as all mortals are. But they strive to get it right and generally they do. And we possess no greater wisdom. Justice Blackmun stated it best about the members of the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final."
The Supreme Court, as I just said, labors long in selecting the decisions it will take up for review, but unlike the Federal Courts of Appeals where the litigants arrive as a matter of right, the Supreme Court spends very little energy deciding which of the cert. granted cases, (which of the cases are accepted for review), which ones will be argued or for how long. Dispositions without oral argument are extremely rare in the Supreme Court and cases that are calendared for arguments, ordinarily get exactly one half hour a side. Occasionally last term in a relatively simple single-issue case, I recalled upon leaving the D.C. circuit the practice of setting ten, fifteen, top twenty minutes per side. But just as often, and even more fondly, I recall the indulgence accorded judges on the D.C. circuit who pursued points, minute upon minute, beyond the allotted time. Our Chief runs a tight ship. Half hour of five is it.
But in the most essential way, oral argument in the Supreme Court is similar to federal and many state appellate tribunals. It is an occasion for an exchange of views about the case, a dialogue or a discussion, the true knowledgeable consul and judges who have done their homework, what we call a "hot bench."
Some lawyers, I have been told, resent interruptions in an oral argument that they have carefully planned as a lecture and some judges ask few questions. My colleague, Justice Blackmun, for example, often tells of the advice that he was given by Justice Hugo Black in the 1970s. 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 waste of a lawyer's precious opportunity to use oral argument or attempt to use it just to recapitulate the briefing instead of trying to uncover what is in the decision maker's mind. Questions from the bench can give counsel a chance to satisfy the court on matters the questioner at least thinks significant and might resolve less satisfactorily without counsel's aid.
Sometimes it is true, a question will be ask with persuasion of a colleague in mind, and the lawyer may sense at those times that she is being talked through, not to. Other times, the questioner may be trying to cue counsel, that an argument, pursued with gusto, is a loser and that counsel would be well advised to move on. A counsel too intent on a prepared script may miss that kind of cue.
There is, I appreciate, a difference in the dynamic of a nine member court and the panel of three. A conversation, accommodating clarifications, interjections, even interruptions, readily managed among four counsel and three appellate judges, is less feasible among ten. And a judge, at one extreme of a long nine member bench, will not always see what is going on at the other side. In particular, she may not observe that questioning is emerging or continuing several feet away, and I can prove that from time to time. Though our format is not flawless, I think argument at the Court generally succeeds in its mission. It more than occasionally reduces or diminishes confusion and conflict and it gives counsel motive and the last clear chance to convince the Court concerning points on which the decision may turn.
As to decisions, in a typical two week sitting period, the Court will meet each Wednesday afternoon when arguments are done to discuss the preceding Monday's cases and each Friday to dispose of accumulated petitions for review and to discuss the cases heard the preceding Tuesday and Wednesday. First thing on the Monday morning after the second Friday, the Chief Justice will circulate writing assignments that he makes when he is in the majority, and when he is not, he will convey the assignments made by the most senior judge in the majority.
Sometime in the second part of the century the Court telescoped its case conferences. Justice Tom Clark wrote in 1956 that then, as in Chief Justice John Marshall's day, the discussion of argued cases preceded down the line in seniority order but, the voting started with the junior justice and moved up. Between 1956 and 1971, the year Chief Justice Rehnquist began his service as an associate justice, the old way passed, news and vote merged, and a strict seniority system prevailed. The Chief Justice sometimes described the disappointment that he felt years ago when he was a junior justice and when his significant contributions were not heeded because votes had already been cast down the line. But he reported with new-found clarity, and having risen from ninth to seventh to first in seniority, that his idea about more of a round table discussion was academic. Fine in the abstract but unlikely to continue much in practice, and at any rate, we do need the seniority system in which the senior justices thrive.
Last term, more than occasionally, I did detect some impatience, a high premium on brevity when the vote came down to me and it was already a clear majority for one position. Last place has its hidden moments; times when the Court was split down the middle and the ninth vote broke the tie. The discussions at our conferences are often spirited. More so than I anticipated. But it's rarely protracted. It will all come out in the writing; a senior justice not uncommonly comments when we have all had our say.
Turning to the writing, I have been pleased by the regard my colleagues have for the label opinion of the court. They demonstrate that regard in view newsletters that respond to a circulating draft opinion. View newsletters typically read, "I recommend that you add, delete, drop, regards to say or more hopefully, I will join your opinion, if you take out, put in, or just as follows..." I am comforted at this time by a remark our Chief has traced to Chief Justice Hughes. Chief Justice Hughes is reputed to have said, that during the eleven years he served on the Supreme Court's bench, he always tried to write his opinions logically and clearly, but if another vote was necessary to make a majority to reach that great number five, and the colleague insisted that certain language would be put in...in it went...and the law reviews were left to figure out what it meant.
There was a long time, you may know indeed, until Chief Justice Melville Fuller's 1888 to 1910 tenure, for all the years before that, when the justices did not circulate their opinions in advance among their colleagues. The opinion author in those days had a free hand. He gave his brethren no opportunity to propose changes. He could compose and publish the opinions in his own way. I would not vote for a return to those old days. I continue to aim for opinions that will, get it right and keep it tight, without undue digressions or decorations or distracting denunciations of colleagues with different views. And I look forward to the useful criticisms of readers of the courts opinions when I mix them up. Last spring I had already received one bad name from a reviewer of Supreme Court decisions, it is a criticism of my opinions for being too short. That was a criticism, you can be sure, that did not come from a trial court judge. That ends my prepared remarks about the Supreme Court's work ways and now I invite your questions and will try my best to answer them.
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