Decision: How the Supreme Court Decides Cases.

The Supreme Court traditionally has been the most secretive and therefore the most mysterious of all the branches of government. Bernard Schwartz's wonderful new book unmasks the Court. Relying extensively on the private papers of justices, especially the recently available papers of Thurgood Marshall, and private interviews with the justices, Schwartz tells the story of how the Supreme Court works.

Although Schwartz, a law professor at the University of Tulsa describes the Court's general workings, the book's main contribution is in revealing how decisions were reached in specific cases. Those knowledgeable about the Court are likely to be familiar with how cases are selected, the process of oral argument, the way the conference among the justices is held, and how opinions are assigned and written. But the wealth of specifics throughout the book almost certainly will be new to all readers because most of these details are based on sources that are not publicly, available.

Schwarts provides new inside information about dozens of Supreme Court cases. For example, the first two chapters describe the Court's decision-making process in abortion cases and tell the fascinating story of how, the opinions were written in the important 1989 case of Webster v. Reproductive Health Services. (492 U.S.190.) Later chapters provide new information on cases such as United States v. Nixon (418 U.S. 683 (1974)), which ordered President Richard Nixon to turn over the Watergate tapes; Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1 (971)), which approved school busing as a remedy in desegregation cases; and Bowers v. Hardwick (478 U.S. 186 (1986)), which upheld the ability of states to prohibit private consensual homosexual activity between adults.

The book is also filled with new information about the justices and their interactions. For example, I did not know that as recently as the late 1940s, the Supreme Court building had race-segregated bathrooms and that Justice Stanley Reed refused to attend a Court Christmas party if African American employees were invited.

The book is not simply a compilation of stories but rather an attempt by Professor Schwartz to use them to illustrate more general aspects of the Court's internal dynamics. For instance, he discusses in detail the chief justice's role and uses cases to illustrate the difference between a strong chief justice, such as Charles Evan Hughes or Earl Warren, and an ineffectual one, such as Fred Vinson or Warren Burger.

Schwartz also considers the ways individual justices can play leadership roles, as William Brennan did during the Warren, Burger, and Rehnquist Courts. A particularly fascinating chapter describes how votes were changed in specific cases between the time that the justices initially voted in conference and the time that the decisions were publicly released.

The book's brilliance is due in part to its scope. Schwartz looks at the Supreme Court throughout its history and across virtually every area of constitutional law.

The last chapter, however, does not seem to fit. Schwartz argues there that the current Court is mediocre and that it is likely to lose public respect because of its excessive reliance on the work of law clerks. The book's shift from a historical work to an openly evaluative one is jarring. More important, Schwartz does not adequately defend these conclusions. Many current justices are widely regarded as having brilliant minds. Whatever one thinks of their ideology, one cannot reasonably deny that recent appointees are distinguished intelllects.

Nor is there any evidence that the public is losing respect for the Court. In all likelihood, its legitimacy depends primarily on the public's agreement with its decisions over a long period of time. How the Supreme Court uses its law clerks is invisible to almost everyone, so Schwartz's conclusion that will undermine the Court's credibility seems highly questionable.

These criticisms of the last chapter aside, Schwartz's new book is a gold mine of information. Lawyer and non-lawyer, constitutional expert and constitutional novice, all will learn enormously from it.