Decision: How the Supreme Court Decides Cases

By Bernard Schwartz | Go to book overview

Cases Covered

Access to the Justices and case files has enabled me to describe what happened behind the scenes in the cases discussed in the following chapters. The cases in the book have been chosen to illustrate different aspects of the Supreme Court decision process -- aspects that are not revealed at all in the public documents available on each decided case, that is, the briefs, oralargument transcripts, and published opinions.

The cases chosen illustrate, first of all, the role of the Chief Justice in the decision of cases. The Chief, as he is usually called within the Court, plays a crucial role in the decision process. He leads the conferences at which cases are discussed and voted on and he assigns the opinions in most cases (the exception is when he does not vote with the majority -- in which case the senior Associate Justice in the majority assigns the opinion). These are the only formal powers of the Chief in the decision process. In the hands of a strong Chief Justice such as Earl Warren, however, they enable the Chief to lead as effectively as a strong President or military leader.

As the cases discussed show, however, the Chief Justice can only lead, he cannot dictate. As Justice Felix Frankfurter once wrote to Justice William J. Brennan, the notion "that he {the Chief Justice} is the boss . . . must be rigorously resisted." Basically, as Justice Tom C. Clark summarized it in a 1956 article, "The Chief Justice has no more authority than other members of the Court."

The point just made is illustrated dramatically in the Webster abortion case in the first chapter. There were few cases that Chief Justice William H. Rehnquist felt more strongly about than Roe v. Wade, the 1973 decision establishing a constitutional right to abortion. He had dissented from the decision and strongly opposed it in later cases. In the 1989 Webster case, Rehnquist made a

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Decision: How the Supreme Court Decides Cases
Table of contents

Table of contents

  • Title Page iii
  • Preface vii
  • Contents xiii
  • Introduction 3
  • Cases Covered 9
  • 1 - Rehnquist and Roe 12
  • 2 - Webster and the Decision Process 36
  • 3 - The Chief Leads the Court 65
  • Super Chief in Action 88
  • 5 - Burger Rebuffed 120
  • 6 - The Court Leads the Chief 135
  • 7 - Individual Justices Lead the Court 155
  • 8 - Vote Switches 178
  • 9 - More Switches, Near Misses, and Abortion 207
  • 10 - Civil Rights and Other Rehnquist Court Switches 237
  • 11 - Apotheosis of Mediocrity? 256
  • Table of Cases 263
  • Index 265
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