Decision: How the Supreme Court Decides Cases

Decision: How the Supreme Court Decides Cases

Decision: How the Supreme Court Decides Cases

Decision: How the Supreme Court Decides Cases

Synopsis

Decision days appear to outsiders as among the most dramatic events on the Supreme Court calendar. One thinks, for instance, of Chief Justice Earl Warren, reading the unanimous opinion in Brown v. Board of Education in a courtroom pervaded by tension. But the real drama of Brown and other Supreme Court cases may well have been what went on behind the scenes. Rarely do the arguments of counsel--brilliant though they may appear to the courtroom audience--dictate the decision in an important Supreme Court case. Rather, the crucial argument in a case takes place privately among the Justices after the public hearing. Decision provides a unique behind-the-scenes look at the Supreme Court and how its Justices decide cases. Distinguished author Bernard Schwartz, described by The New York Times as "one of the nation's leading legal scholars," uses confidential conference notes, draft opinions, memoranda, letters, and interviews to tell what really goes on behind the red velour curtain. Cases and anecdotes, woven into deft discussions of the Justices and how they function, provide unmatched insights into our high tribunal. We read of the conferences where the Justices cast their votes, the decisions as to who will write opinions (one of the most critical choices made by the Chief Justice), the often extensive give and take of the draft opinion, and the intense lobbying between Justices that influences vote changes (it was Chief Justice Earl Warren's pressure on Justice Reed in Brown that made the final vote unanimous). Schwartz focuses on the Warren, Burger, and Rehnquist courts, providing not just vivid portraits of the Chief Justices themselves, but also profiles of many Associate Justices in action--including Felix Frankfurter, Byron R. White, Sandra Day O'Connor, William J. Brennan, Thurgood Marshall, and John Paul Stevens. And Schwartz includes an eye-opening discussion of the expanding role of the Justices' clerks, revealing that they are no longer merely a "staff of assistants." Instead, they have evolved into a sort of "Junior Supreme Court," which performs a major part of the judicial role--including the writing of opinions--delegated by the Constitution to the Justices themselves. Decision gives readers a privileged look at countless cases throughout the Court's history, from the Dred Scott decision to Miranda v. Arizona to the controversial decision in Roe v. Wade to United States v. Nixon (the Watergate tapes case). Highly readable, yet written with impeccable scholarship, Decision shows the Justices in action as never before. Everything you wanted to know about the Supreme Court and were afraid to ask is here, in a revealing work on the institution that has had such an impact on our law and our life.

Excerpt

During the past decade and a half there have been unprecedented revelations about the Supreme Court's decision process. According to Anthony Lewis in the New York Times, they have resulted from a "new genre of books penetrating the Court's secrecy," starting with The Brethren by Bob Woodward and Scott Armstrong in 1979. The situation has changed completely from that of only a few years earlier, when Nina Totenberg wrote that there was "no more secret society in America than the Supreme Court." In those days, what went on behind the red velour curtain was as removed from the public gaze as the decision process in Stalin and Brezhnev's Kremlin.

As described by Erwin Griswold, former solicitor general and Harvard Law School dean, the revelatory type of book "tells you just what the justices said in the conference room, as they entered the elevator and to their law clerks -- how they pulled, hauled, schemed, battled and traded until somehow or other they got all those cases decided, some of them of supreme importance."

In her 1975 article, Totenberg stated, "It is unheard of for a Justice to reveal anything specific about the Court's case work; law clerks, too, are sworn to secrecy." To the contrary, the recent revelations about the Court's decision process have been based upon information provided by Justices and law clerks, as well as material from Court files provided by them. The present book has been made possible by the willingness of some of the Justices to speak to me, not only generally about the Court's operation, but also about how specific cases were decided. They have given me virtually unlimited access to their files, containing conference notes, draft opinions, letters, and memoranda. Likewise, former law clerks have furnished me with information on the Court's work during their years of service.

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