Decision: How the Supreme Court Decides Cases

By Bernard Schwartz | Go to book overview

2
Webster and
the Decision Process

Webster v. Reproductive Health Services is, to be sure, not typical of the Supreme Court's decision process. It is rare for a Chief Justice to be so rebuffed by his colleagues. (Though there are other examples as well, as we shall see in Chapters 5 and 6.) On the other hand, the case does tell us a great deal about the Supreme Court's decision process.


THE BRETHREN AND THEIR SISTER

In the first place, Webster shows that, if the Court can be led, it cannot be dominated by the Chief Justice. While it may be the custom to designate the high court by the name of its Chief, one who looks only to the powers of the Chief Justice will find it hard to understand this underscoring of his preeminence. In Justice Tom C. Clark's words in a 1956 article, "The Chief Justice has no more authority than other members of the court."

Understandably, the Justices themselves have always been sensitive to claims that the Chief Justice has greater power than the others. "It is vitally important," asserted Justice Felix Frankfurter in a 1956 letter to Justice Harold H. Burton, "to remember what Holmes said about the office: 'Of course, the position of the Chief Justice differs from that of the other Justices only on the administrative side.'" Two years later Frankfurter wrote to Justice Brennan, "any encouragement in a Chief Justice that he is the boss . . . must be rigorously resisted. . . . I, for my part, will discharge what I regard as a post of trusteeship, not least in keeping the Chief Justice in his place, as long as I am around.

Even a strong Chief Justice, such as Earl Warren, soon realized that he could not deal with the Justices in the way he had directed matters when he had been Governor of California. "I think," Justice Potter Stewart once said, "he came to

-36-

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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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