How the Supreme Court really works: after 30 years covering the Court of The New York Times, Linda Greenhouse takes us behind the scenes for a look at how nine Justices determine the law of the land.
The question before the Justices was a momentous one: Does "the right of the people to keep and bear arms" in the Constitution's Second Amendment give individuals the right to have a loaded gun at home for stir-defense? Despite years of national debate over gun control, the Supreme Court had never before in the 217 years since the adoption of the Bill of Rights addressed this critical question directly.
Outside the Court's majestic building across from the Capitol, people chanted and held up signs for the TV cameras. But in the courtroom, all was calm as the black-robed Justices, eight men and one woman, questioned the lawyers presenting the case.
"What is reasonable about a total ban on [gun] possession?" asked Chief Justice John G. Roberts Jr.
"What about a requirement that you obtain a license to have a handgun?" asked Justice Ruth Bader Ginsburg. And so on, until each Justice with a question had a chance to probe the various arguments.
And then it was over. "The case is submitted," Roberts declared. The Justices disappeared behind the curtain, and the audience filed quietly out.
Most of those people, I suspect, had only a vague idea of what would happen next. During the nearly 30 years that I covered the Supreme Court for The New York Times, I came to understand the Court's obscure practices--the details that don't make their way into textbooks--and I got to know the Justices themselves.
Of those on the Court when I arrived in 1978, only Justice John Paul Stevens remains, still vigorous and playing tennis at 88. I covered the arrival of the first female Justice, Sandra Day O'Connor, in 1981, and her retirement 25 years later.
It's hard today to grasp the impact it had when President Ronald Reagan named a woman to the highest court at a time when few women were judges, or even partners in major law firms. In addition to being a groundbreaker, O'Connor played a pivotal role as the "swing vote" that decided many important cases. (Since her retirement in 2006, Justice Anthony M. Kennedy seems to have assumed that role.)
Justices typically come to the Court in middle age, and do not shed their personalities at the courthouse door. The late Chief Justice William H. Rehnquist, for example, kept up his weekly poker game and loved to bet on everything from the outcome of an election to the depth of an overnight snowfall on the Court's steps. Ginsburg, the Court's second and currently the only female member, can look severe in photos, but she actually loves fashion and has appeared on several "best-dressed" lists.
In some ways, the Justices are regular folks. Except for the Chief Justice, who receives a car and driver, they drive themselves to work. Their salaries ($208,100 and $217,400 for the Chief Justice) are no higher than those of young lawyers at major big-city law firms. When they're not on the bench, the robes come off and they wear standard business attire.
NO MEDIA GLARE
The Supreme Court has been largely shielded from the media glare that the other two branches of government have become used to. TV cameras and recording devices are not allowed in the courtroom. In fact, after the grueling interrogations that Justices must endure as part of the Senate confirmation process (after being nominated by the President), they don't have to answer to anyone: They're appointed for life, and can't be hauled before Congress to testify. They don't have to answer reporters' questions, and can decide if and when to speak in public--most often at legal conferences or schools.
The lack of TV coverage lets the Justices retain a degree of privacy almost unthinkable for such powerful people. Few people recognize them. I once saw a tourist hand a camera to Justice Byron R. White outside the Court's public cafeteria, and, having no idea that the tall gray-haired man was one of the nine Justices, ask him to take his family's picture. White, who retired in 1993, wordlessly complied.
But while the Court may seem like it's shrouded in secrecy, I would argue that it's actually the most transparent of the three branches of government: Everything the Court does is on the record. Opinions are signed. During oral arguments, the Justices ask questions without staffers passing them notes, as often happens in congressional hearings. Transcripts of oral arguments are posted online. In Congress, entire agendas can disappear without a trace. That doesn't happen at the Court.
Still, I think televising oral arguments would be a good idea since it would let the public share in the drama though they'd still have lots of questions about how the Court does the rest of its work.
80 OUT OF 8,000
The process actually starts months before the oral arguments, with the selection of cases the Court will hear. Each year, of the 8,000 appeals submitted, the Justices agree to hear about one percent. Their law clerks do much of the sorting to find the 80 or so cases deemed worthy of the Court's attention--usually because there's a constitutional issue at stake or because lower courts have issued conflicting opinions.
Each Justice has four law clerks, usually top law-school graduates in their mid-20s, who stay for a year before moving on. (Three of the current Justices--Roberts, Stevens, and Stephen G. Breyer--were Supreme Court clerks.) Justices usually form close relationships with their clerks.
When I started covering the Court, I thought of it as a lively debating society, with Justices popping into one another's offices to bat around the great legal issues of the day. It's not. Once or twice a week, the Justices do meet as a group, but that's often the extent of their face-to-face interaction.
Most of their communication with one another is in writing, simply because writing is much more precise than chatting. Almost every opinion is filled with nuance, and the smallest details matter. Before they sign their names to an opinion, Justices have to be satisfied that it really expresses their views--and no opinion without five signatures speaks for the Court.
Within a day or two of oral arguments, the Justices meet for a straw vote. Then the Chief Justice (if he's in the majority) assigns himself or another member of the majority to draft an opinion. If the Chief Justice is in dissent, the senior Justice in the majority makes the assignment.
AFTER THE ELECTION ...
From there, opinions can go through multiple drafts in order to hold the original majority. Justices don't engage in vote-trading the way politicians do--there's no "I'll support your favorite project if you'll support mine"--but they are often willing to make changes to accommodate the views of wavering allies and keep them on their side. Sometimes this results in an opinion that is narrower than expected.
The Court's decision in the Second Amendment case was handed down in June. The vote was 5 to 4 in favor of an individual right to own a gun. Chief Justice Roberts assigned Justice Antonin Scalia to write the majority opinion.
This year, the Court convenes in the shadow of a presidential election that could shape its future. With five of the nine Justices 70 or older, John McCain or Barack Obama could end up appointing several Justices.
But no matter who's making the appointments, it can be hard to predict how any Justice will vote over the long term. I learned many things during my 30 years at the Supreme Court--including the folly of trying to predict the Court's future.
Justice Stephen G. Breyer
APPOINTED: 1994, by President Bill Clinton
OFF THE BENCH: Breyer taught himself Spanish by listening to tapes during morning jogs and bike rides.
Justice Anthony M. Kennedy
APPOINTED: 1988, by President Ronald Reagan
OFF THE BENCH: Every summer, Kennedy teaches a course on the Constitution in Austria.
Justice John Paul Stevens
APPOINTED: 1975, by President Gerald R. Ford
OFF THE BENCH: Until recently, Stevens piloted his own plane.
Justice Clarence Thomas
APPOINTED: 1991, by President George H. W. Bush
OFF THE BENCH: Thomas loves to drive his black 1989 Corvette.
Chief Justice John G. Roberts Jr.
APPOINTED: 2005, by President George W. Bush
OFF THE BENCH: Roberts was captain of his high school football team at La Lumiere School in La Porte, Indiana.
Justice Antonin Scalia
APPOINTED: 1786, by President Ronald Reagan
OFF THE BENCH: Scalia is known as a gifted storyteller, and he plays the piano.
Justice Ruth Bader Ginsburg
APPOINTED: 1993. by President Bill Clinton
OFF THE BENCH: Ginsburg loves to listen to opera and read mystery novels.
Justice Samuel A. Alito Jr.
APPOINTED: 2006, by President George W. Bush
OFF THE BENCH: A huge Philadelphia Phillies fan, Alito's childhood dream was to be baseball commissioner.
Justice David H. Souter
APPOINTED: 1990, by President George H. W. Bush
OFF THE BENCH: Souter loves hiking and has climbed all 47 of New Hampshire's 4,000-foot-plus mountains.
Supreme Court Timeline
Marbury v. Madison
The Court firmly establishes its authority by declaring, for the first time, that a law passed by Congress is unconstitutional--a power not explicitly granted in the Constitution.
Dred Scott v. Sandford
Dred Scott, a slave who lived with his master in a free state, Illinois, before moving back to Missouri, a slave state, appears to the Court for his freedom. The Court rules that since blacks are not citizens, they cannot sue in federal court.
Plessy v. Ferguson
In a case involving segregated railroad cars, the Court establishes the doctrine of "separate but equal," which becomes the legal basis for "Jim Crow" racial segregation laws in the South.
After meeting for 135 years in the Capitol--with the Justices often working from their homes--the Court gets a home of its own, across from the Capitol
Frustrated by the Court's declaring many of his New Deal initiatives unconstitutional, President Roosevelt proposes expanding the Court to 15 Justices, from 9. Congress rejects the plan after months of intense debate.
Brown v. Board of Education
After 58 years, the Court overturns the "separate but equal." doctrine of Plessy v. Ferguson, and bars segregation in the nation's public schools.
The Court's first black Justice is appointed by President Lyndon B. Johnson.
Roe v. Wade
In a decision that remains controversial 35 years later, the Court establishes a woman's constitutional. right to an abortion.
Sandra Day O'Connor
The Court's first female Justice is appointed by President Ronald Reagan.
After an intense fight that now seems to be standard, the Senate rejects President Reagan's nomination of Robert Bork, a conservative judge.
Bush v. Gore
With the presidential election still undecided more than a month after Election Day, the Court stops a recount of Florida's vote and effectively makes George W. Bush the winner over Al Gore.
The Next President
With five of the nine Justices in their 70s or older, whoever wins the election next month could end up appointing several. Justices and shaping the Court for years to come.
Five Cases to Watch A preview of key cases on the Court's docket from Adam Liptak, The New York Times's new Supreme Court correspondent
1 WHAT KIND OF CONTROL SHOULD GOVERNMENT HAVE OVER MONUMENTS IN PUBLIC PARKS?
Adherents of a religion called Summum wanted to install a monument with the tenets of their faith in a town park next to a monument of the Ten Commandments; the town, Pleasant Grove, Utah, turned them down. The case, Pleasant Grove v. Summum, raises issues of both religious freedom and free speech in public places.
2 SHOULD THE U.S. GRANT ASYLUM TO REFUGEES WHO WERE FORCED TO PERSECUTE OTHERS?
Under U.S. law, foreigners who fear they'll be harmed if they go home can seek asylum here, but only if they haven't persecuted others. Daniel Negusie was drafted and forced under threat of execution to help operate a prison camp in the African nation of Eritrea. He admits mistreating prisoners, but in Negusie v. Mukasey says he should be granted asylum because he was acting under duress.
3 CAN A MUSICIAN SUE A DRUG COMPANY OVER A MEDICAL MISHAP THAT COST HER AN ARM?
Diana Levine, a guitarist, lost much of her right arm in a medical mishap caused by the injection of an anti-nausea drug. A Vermont jury ordered the drug's manufacturer, Wyeth, to pay her more than $6 million. In Wyeth v. Levine, Wyeth is asking the Supreme Court to throw out that verdict, arguing that it had complied with federal safety standards.
4 DOES NATIONAL SECURITY TRUMP ENVIRONMENTAL PROTECTION?
Sonar used by the Navy in training exercises off Southern California may harm dolphins and whales. In Winter v. Natural Resources Defense Council, the Bush administration is appearing a tower court's order restricting the exercises in order to protect the animals. It says the training is vital, to national security and that the courts, therefore, should not interfere.
5 SHOULD TV NETWORKS BE FINED FOR BROADCASTING A FLEETING BAD WORD?
When Paris Hilton and Nicole Richie appeared on the Billboard Music Awards in 2003, their banter included a couple of curse words, which were broadcast live. The Supreme Court will decide in Federal Communications Commission v. Fox Television whether the government has the power to punish broadcasters for airing offhand, impromptu cursing.
LESSON PLAN 3
Review with students Article III of the U.S. Constitution, which establishes a judicial branch of government but does not say how it should work. That was Left to the first Congress in 1789, which created a federal court system, including district and appellate courts and the Supreme Court.
* Why do you think the Framers did not detail how the court system should be set up?
* Why was it important for the first Congress to do so?
Distribute copies of the Bill of Rights. Which of these ten Amendments deal with judicial proceedings? How does the Supreme Court uphold these Amendments?
Why is a Supreme Court or its equivalent so important in a democracy?
Write a newspaper editorial on the need for accountability in each of the three branches of government. Provide specific examples to support your views.
The motto of the Supreme Court is Equal Justice Under Law. Do all Americans receive equal justice under the law?
How does the judicial branch support the executive and legislative branches of American government?
Why are no cameras or tape recorders allowed at Court proceedings? Why are privacy and secrecy so important for the Court?
Supreme Court cases are often emotionally charged. About which constitutional rights do you feel most strongly?
What aspect of the Court in Linda Greenhouse's account surprised you most?
How might the presidential election affect the Supreme Court and America in the years ahead? Do you think voters will consider this when voting? Why or why not?
The Supreme Court first convened on Feb. 2, 1790, but the Court did not hear its first case unfit 1792.
Explore the Court's history and rules, biographies of the Justices, oral argument transcripts, and more.
(1) The Supreme Court--only a few dozen times a year.
b meets with the media
c changes Justices
d holds oral arguments
(2) Which of the following statements about the Supreme Court is false?
a TV cameras and recording devices are not allowed in the courtroom.
b The Court carries out all its business behind closed doors.
c Justices cannot be forced to testify in Congress.
d Justices do not have to answer reporters' questions.
(3) Of the approximately 8,000 appeals submitted to the Supreme Court each year about what percentage are accepted?
a 1 percent
b 10 percent
c 40 percent
d 60 percent
(4) Who was the Court's first black Justice?
a Dred Scott
b Clarence Thomas
c Byron R. White
d Thurgood Marshall
(5) The Supreme Court case that outlawed segregation in public schools overturned what earlier Court decision?
a Brown v. Board of Education
b Marbury v. Madison
c Plessy v. Ferguson
d Roe v. Wade
(6) How is it determined who drafts the majority and minority opinions for each case? --
(1) The article previews five cases the Court will consider in its new term. Which is most significant to you, and why? How do you think the Court will rule in this case? However it is decided, what impact do you think the ruling could have?
(2) How does the political and social climate of the U.S. affect the rulings that the Supreme Court makes?
(1) (d) holds oral arguments
(2) (b) The Court carries out all its business behind closed doors.
(3) (a) 1 percent
(4) (d) Thurgood Marshall
(5) (c) Plessy v. Ferguson
(6) If the Chief Justice is in the majority, he assigns himself or another member of the majority to draft an opinion. If he is in dissent, the senior Justice in the majority makes the assignment.
* USE with articles identified.
The statements are answers to questions [modeled after the TV show Jeopardy!]. Students must answer in the form of questions.
* DIVIDE the class into teams.
* READ the statements.
* CALL on the first team with a hand raised.
CORRECT ANSWER = 10 points
WRONG ANSWER = -10 points
(And another team may respond for the same chance to gain or Lose 10 points.)
STATEMENTS TO READ CORRECT RESPONSE (1) The only part of a Supreme Court deliberation that the public gets to see. What are oral arguments? (2) She was the first female Justice of Who is Sandra Day the Supreme Court. O'Connor? (3) These technologies are not allowed in What are cameras and the Supreme Court courtroom. recording devices? (3) Each Justice has four of these helping Who are Law clerks? him or her. (4) This many signatures are needed on a Supreme Court opinion for it to become Law. What is five?
Linda Greenhouse spent almost 30 years as the Supreme Court correspondent for The New York Times; she is now journalist in residence at Yale Law School.
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|Publication:||New York Times Upfront|
|Date:||Oct 20, 2008|
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