The Supreme Court: Deciding Whether to Decide

IN the view of its Chief Justice, the Supreme Court of the United States is choking to death on legal paper work. Speaking last week at a Columbia University dinner honoring the late Harlan Fiske Stone (Chief Justice from 1941 to 1946), Warren Burger noted that the annual docket has grown from 1,448 cases in 1945, to 4,202 in 1969--his first year on the court--to 4,533 cases last year. At last Friday's conference session, he added, the Justices had to consider whether to hear full-dress arguments on as many as 247 cases.

Some relief may be on the way. Next week, a seven-man committee of judicial experts, appointed by Burger and chaired by Harvard Law Professor Paul Freund, will formally propose that Congress create a new nine-judge court composed of judges chosen on a rotating basis from the U.S. Courts of Appeals. That court would screen all cases now referred to the Supreme Court for review, and determine which were important enough for the high bench to hear. If the Freund committee proposals are accepted by Congress and the President, the Supreme Court Justices would still have the right to hear any case they wanted. In practice, if not in theory, though, they would surrender a substantial amount of the authority they now exercise in deciding which issues they are going to consider.

Since the 19th century, those decisions have been made by the nine judges at daylong conferences that take place every week during the court term. No outsider has ever been allowed to attend those unique secret sessions, but from interviews with several of the Justices (who agreed to speak on a background basis only), TIME Correspondent David Beckwith was able to put together a detailed picture of what they are like. His report:

A few minutes before 10 on Friday mornings, the marble corridors of the Supreme Court building's main floor echo with the clatter of handcarts being pushed toward the well-guarded main conference room next door to the Chief Justice's office. The carts contain petitions for certiorari (requests for review, the normal means by which most cases reach the court), briefs, transcripts, memos from clerks, notebooks--every Justice's file on virtually every case that may come up during the taxing all-day session. It usually takes two or three carts to hold each Justice's material; 20 or more of them surround the massive mahogany table and nine high-backed chairs by the time the first Justices arrive and begin making small talk while pouring themselves cups of coffee from a silver urn.

When the last Justice walks in (it is considered discourteous to be even a minute late), the oak door is shut. By long tradition, the Justices then shake hands all around. Two guards are posted in the anteroom to ensure that the proceedings are undisturbed. If contact with the outside world is necessary, William Rehnquist, the junior Justice, will open the door slightly to hand out or receive a written message.

The Chief runs the meeting, and the Justices give their views in order of seniority. "All right," Burger might say, "the first case seems to be 72-118, Gray v. White. In the petition, the plaintiff claims an abridgment of his right to freedom of religion by prison authorities. I believe we settled this question three years ago in Black v. Blue. I would be inclined to deny." After concluding his reasons for denial, he would turn to William O. Douglas, the senior Justice, and ask: "Bill, what do you think?" So it goes, down the line. It may take the judges no more than five minutes to decide whether or not they will consider Gray v. White; even so, it would have received more attention in conference than most petitions that reach the court. About half are never discussed at all, dismissed virtually out of hand because they did not attract the attention of a single Justice who was willing to request that they be discussed in the conference.

Until this year, every Justice and his clerks reviewed each petition as it arrived. At the suggestion of Freshman Justice Lewis Powell, the petitions are now assigned to one of the law clerks, who prepares a single pool memo of one to 15 pages for separate consideration by Justices Burger, Powell, White, Blackmun and Rehnquist. Douglas, Stewart, Brennan and Marshall have refused to go along with the innovation and each reads every petition or a memo on it prepared for him by his own clerk.

Toss-Outs. Deciding which cases to accept is very much an individual matter for each of the Justices. All agree that experience on the high court leads to a certain facility in identifying unworthy petitions: "A good number are obviously frivolous, and I'm seeing them more quickly now than I did at first," says one of the newer Justices. Matters that are purely local in nature, affecting only a few people and without any serious question of federal or constitutional law, are automatic toss-outs. Isolated cases of injustices are apt to be ignored too. "We've got to consider the importance of the point of the decision to the administration of justice," observes one of the judges. "If it's something that won't reoccur for 100 years or so, we'll probably pass it up." To some Justices, jailhouse petitions for habeas corpus are standard throwaways. Douglas, however, likes to read as many handwritten appeals as possible; he considers it a personal coup if he can force his brother judges to accept such a petition.

Cases that are automatically accepted are even fewer in number than automatic rejections. "It's easy to take a case where two or more circuit courts have interpreted an IRS rule in different ways," said one judge. "Things like that have to be straightened out quickly." Yet even when the Justices have an obvious conflict between circuit courts to resolve, or an overwhelmingly important constitutional question to decide, there is often a tendency to delay, to be cautious, to allow the controversy to ripen. "We benefit greatly from the wisdom of the circuit courts," says the same judge. "Even when I'm inclined to hear a novel case, I often vote to deny just so we can get more input, more perspective from the lower courts."

The mood of the country is also taken into account, several Justices admitted. One pointed out that in the late '40s and early '50s, the court declined to hear a number of desegregation cases that were very similar to Brown v. Board of Education. "If the issue had been decided earlier," he said, "it might have gone the other way or, more likely, it would have produced a divided court. In the long run, the delay was probably beneficial for the country." Often the decision whether to accept or reject a case hinges on a Justice's feeling about how the court will collectively rule on the matter. Explains one: "If I suspected a good decision by a lower court would be affirmed, making its application nationwide, I'd probably vote to grant." On the other hand, "a decision may seem outrageously wrong to me, but if I thought the court would affirm it, then I'd vote to deny. I'd much prefer bad law to remain the law of the Eighth Circuit or the State of Michigan than to have it become the law of the land."

The decision-making strategy is augmented by gamesmanship round the table. "Occasionally," says one member, "a Justice will just say 'I pass' and not express an opinion until everyone else has indicated a preference." A Justice will often say he's "inclined" to grant or deny, thus keeping his options open until the final tally. And if three Justices feel strongly about a case, "it's not unusual for another Justice to add a fourth vote as a courtesy." Since 1925, the informal but almost invariably followed "rule of four" has meant that a case is not accepted for a hearing unless four Justices vote for it.

Drained. Burger "has good sense of pace," says one of his colleagues. The Chief knows when to curtail drifting discussion and when to call a temper-cooling coffee break. But there are inevitable undercurrents of tension on the ideologically split court. While one Justice speaks of another as "a great storyteller, quick with very funny stories about cases he's tried," still another grouses that the conferences occasionally get bogged down with "war stories about famous cases I have judged." The occasional jokes that lighten the sessions tend to be a bit lawyerly. "For instance," explains a Justice, "somebody might say in the middle of a rape-case discussion, 'I think the central question here is the same problem we faced in that antitrust case a few minutes ago: Was there consent?' It doesn't seem too funny now, but it gets a big laugh at the time."

Most of the members of the court agree that they emerge from the six to seven-hour conferences "emotionally drained" and "completely exhausted." Indeed the amount of energy they devote to the task is testimony to the importance of the process. Says one hardy Justice: "I suppose a lot of people would think we've got it pretty easy--sitting there talking from 10 to 12:30 and from 1:15 to after 5. Well, I've done a lot of physical work and all-day hiking, and I've never been as tired as I usually am at the end of one of those conferences."

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