Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

7
What Really Goes On at the Supreme Court

LEWIS F. POWELL JR. Justice, Supreme Court of the United States

The Court is a place where Justices, and their small staffs, work extremely long hours; where the work is sometimes tedious, though always intellectually demanding; where we take our responsibility with the utmost seriousness; and where there is little or no time for socializing.

The constitutional duty of the Court, as John Marshall said in Marbury v. Madison, is to "say what the law is." In discharging this function, the Court is the final arbiter, and therefore its role in our system of government is powerful and unique. But it is remote from the mainstream of government.

It is natural, however, to be curious about secrets. For years-- perhaps throughout the history of the Court--there have been stories and gossip about secret goings-on behind the Court's closed doors. I recall an article in the New York Times Magazine of 16 March 1975 that described the Supreme Court as probably the most "secret society in America."

The fact is that the extent of our secrecy is greatly exaggerated. The doors of the Court are open to the public. Both the press and the public are welcome at all of our argument sessions. Our decisions in the argued cases are printed and widely disseminated.

The charge of secrecy relates only to the discussions, exchanges of views by memoranda, and the drafting that precede our judgments and published opinions. As lawyers know, we get together almost every Friday to discuss petitions by litigants who wish us to hear their cases, and to debate and vote tentatively on the argued cases. Only Justices attend these conferences. There are no law clerks, no secretaries, and no tape recorders--at least none of which we have knowledge.

The Chief Justice, and the most junior Justice, have the responsibility of recording our votes. These votes always are tentative until the cases are fi

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