Remarks by Chief Justice William H. Rehnquist
Lecture at the Faculty of Law of the
University of Guanajuato, Mexico
Thursday, September 27, 2001
Good morning. I am pleased to be here as part of a Judicial exchange between Mexico and the United States. Today I will give you some general background about the Supreme Court of the United States and describe how the Court works.
The Supreme Court of the United States has been in existence for more than 200 years. Because it has the power of judicial review - that is, the authority to declare an act of Congress or of the Executive unconstitutional and void - it is bound on occasion to antagonize these other branches. Fifty years ago, during the Korean War, President Truman seized the country's steel mills from their private owners in order to avoid a strike. The Supreme Court ordered him to return them to their owners, and he did so.
Some 25 years ago, President Nixon refused to turn over to a court in which a criminal case was pending tapes of his conversations which bore on the case. The Supreme Court told him that he must turn them over. He did so, and resigned from office as a result.
Several years ago, the Court told President Clinton that he was answerable in a private lawsuit even though he was President. He answered.
How has a court so engaged in controversy not only survived, but maintained its authority for more than two centuries? There are a number of reasons, but first and foremost is the fact that it is genuinely independent of both the Executive and the Legislative Branches. We are far from infallible - but our mistakes are our own, and not imposed on us by Congress or the President.
There are nine Justices on the Supreme Court of the United States. Justices are appointed by the President, with the approval of a majority of the Senate. This is a bit different from your system, in which the President submits three candidates to the Senate and the Senate chooses one of those candidates by a vote of two-thirds of the members in attendance. And while the Justices on your Supreme Court serve for fifteen years, in the United States all federal judges appointed under Article III of our Constitution are appointed for life.
My first experience with the Supreme Court was not as a lawyer or as a Justice, but as a law clerk. In December 1951, I had just been graduated from Stanford Law School in Palo Alto, California. I did not start out to be a lawyer -- prior to law school, I had studied political science and government with the idea of being a college professor.
In those days, when people did not easily travel across the country for a job interview, the great majority of Supreme Court law clerks were graduates of law schools in the Eastern half of the United States. Justice William Douglas had roots in the West, so he made an effort to select clerks from the West. The chance of getting a clerkship with one of the other Justices seemed remote to me.
But as luck would have it, Justice Jackson came to Stanford to dedicate the new Stanford Law School building in the summer of 1951 and one of my professors arranged for an interview. Justice Jackson was pleasant and rather informal. After a few questions about my background and legal education, he asked whether my last name was Swedish. When I said it was, Justice Jackson told several anecdotes about Swedish clients he had represented while practicing law in New York. It was an enjoyable conversation, but when the interview was over, I was sure that I was not going to get the job. To my surprise, in November I received a letter offering me a clerkship beginning the following February.
Twenty years later, in 1972, I was appointed to the Supreme Court by President Nixon as an Associate Justice. In 1986, I was chosen by President Reagan to be Chief Justice and I will remain in that position until I retire. This is unlike your system, where the Justices on the Court select one member of the court to serve as President of the court for four years.
Because I am the Chief Justice, people are often surprised to hear what a small staff I have in my chambers, or office. In addition to my three law clerks, I have two secretaries and one aide. The law clerks have usually been out of law school for just a year or two when they come to the Court and most have first served as law clerks to lower federal court judges. The law clerks serve for only one year. Most of the Justices have four law clerks, but Justice Stevens and I have three because that is the number we prefer. One of the most distinguished of the Court's past Justices, Louis D. Brandeis, was asked why he thought that people respected the Court. His reply was short and pithy: "Because we do our own work."
Today, the work of the Court consists essentially of three different functions. First, we select which cases we will decide. Second, we actually decide those cases, which consists of studying the papers filed, hearing the oral arguments of the lawyers and voting which way the case will come out. Third, we prepare written opinions supporting and explaining the result reached by the majority, and there are often separate concurring or dissenting opinions by those Justices who do not agree with the reasoning of the majority opinion.
The authority to decide for itself which cases it will hear is essential to a court of last resort such as ours. We have not always had it. For about the first hundred years of our Court's existence, from 1789 until 1891, it served as an appeals court for the federal trial courts. If a party to a suit in a lower court was dissatisfied, he had a right to a direct appeal to the Supreme Court. As the size and population of the United States increased, so did the number of federal trial courts, and as Congress conferred wider jurisdiction on those federal trial courts, the number of cases filed in the Supreme Court became too numerous for the Court to handle efficiently.
Although Congress created the intermediate courts of appeals -- called circuit courts -- in 1891, it was not until 1925 that Congress passed the Certiorari Act, which gave the Supreme Court discretion as to which cases to hear. Chief Justice William Howard Taft was the person mainly responsible for the passage of that statute.
Taft was an interesting fellow in his own right. He was a very large man -- muy gordo -- weighing over 300 pounds - 135 kilograms. He is the only person ever to serve as both President of the United States and Chief Justice. He also served as the Secretary of War for President Theodore Roosevelt and oversaw construction of the Panama Canal. When he was appointed Chief Justice, the Court had fallen nearly five years behind in its docket. He resolved this caseload congestion in the Court by convincing Congress to give the Court discretion as to which cases to hear. Some members of Congress were doubtful - why shouldn't every litigant have a right to get a decision on his case from the Supreme Court? Taft responded that in each case, there had already been one trial and one appeal. "Two courts are enough for justice," he said. To obtain still a third hearing in the Supreme Court, there should be some question involved more important than just who wins this lawsuit.
Under the Certiorari Act, a party dissatisfied with a decision in either a state court of last resort or a federal appeals court may file a petition for a writ of certiorari with the Supreme Court and the Court decides whether or not to grant the petition and hear the case. Rather than serving as an appellate court that simply attempts to correct errors in cases involving no generally important principle of law, the Court instead tries to pick those cases involving unsettled questions of federal constitutional or statutory law of general interest. When the Court renders a decision, it is binding on and must be followed by the lower courts not only in that case, but in any case that presents the same question.
When I joined the Court in 1972, about 4,000 petitions for certiorari were filed each year with the Court, and we selected about 150 cases to hear on the merits. Today, about 7,000 petitions are filed each year and we hear about 80. Now, if you do the math, you will see that 7,000 petitions per year means an average of about 135 petitions each week. In order to manage this volume, we rely on our law clerks to summarize the petitions.
Although our Court otherwise operates by majority rule, in order to grant a petition for certiorari -- and decide to accept a case for decision -- it only takes four, rather than five, votes. During the time the Court is sitting, from the first Monday in October through sometime in June, the nine members of the Court meet in conference each week to vote on the petitions and decide which cases to accept. These conferences take place in a conference room in the Supreme Court building. Only the nine Justices are present. The conferences are not open to the public or any Court staff.
Shortly before each conference, I send out a list of the petitions to be decided during that conference that I want to discuss. Each of the other Justices may ask to have additional cases put on the "discuss list." If at any particular conference there are 100 petitions to be decided, there may be anywhere from 15 to 30 that are on the discuss list. The petitions for certiorari that are not discussed are denied without any recorded vote.
Whether or not to grant certiorari is a rather subjective decision, made up in part of intuition and in part of legal judgment. One important factor is whether the case being considered has been decided differently from a very similar case decided by another lower court. Another factor that makes a difference is whether the lower court decision seems to have incorrectly applied a Supreme Court decision that the Justices believe should have directed the outcome of the case.
Now when a case is filed with the Supreme Court, the Court's job is to pick from the several thousand cases it is asked to review each year those cases involving unsettled questions of federal constitutional or statutory law of general interest.
After the Court performs its first function of picking which cases to decide, it must move on to hear and decide them. Several weeks before oral argument is scheduled, the parties must file briefs that conform with specific Court rules. The rules direct what information must be included in a brief, describe the size of paper and type of print, and limit the number of pages. Even the colors of the covers of the briefs are specified: the petitioner's brief must have a blue cover and the respondent's must have a red cover. The Court also often receives briefs from amici curiae -- or friends of the Court -- in particular cases, and these must have a green cover. This color-coding comes in very handy when you have a stack of eight or ten briefs in a particular case and can locate the brief you want by its color without having to read the covers of each.
Each Justice of course prepares for argument in his own way. Some of my colleagues get memos from their law clerks summarizing and analyzing the arguments made by each side. I do not do this because it does not suit my working style. When I begin to prepare for a case that will be orally argued, I first read the opinion of the lower court that is to be reviewed. I find this a good starting point because it has been produced by another court which, like ours, is sworn to uphold the Constitution and laws and has presumably done its best to decide the case fairly. Then I read the petitioner's brief and then the respondent's brief.
One of my law clerks will have done the same thing so that we can discuss the case. And when we are both ready, that is what we do. If the weather is suitable, we will walk around the neighborhood of the Court building, or sometimes we sit in my chambers. We discuss our reactions to certain arguments and if I think the briefs do not cover a particular point adequately, I may ask the clerk to write a memorandum on that point. Then I go back and read the main Supreme Court opinions relied upon by one side or the other in their briefs.
The oral arguments are the only publicly visible part of the Supreme Court's decision process. It is the time set aside for all nine Justices to gather to hear the advocates for both sides argue the case and to ask our own questions. We hear arguments in the courtroom of the Supreme Court building fourteen weeks out of each year; two weeks each in the months of October through April. During the weeks of oral argument, the Court sits on the bench from ten o'clock in the morning until noon on Monday, Tuesday and Wednesday. On each day, it hears two cases, allotting a half hour to the lawyers representing each side in each case. Oral arguments are open to the public and if you were to visit Washington during an oral argument week, you could come to the Court in the morning and stand in line to see an argument or part of one.
Once a case has been argued, we must decide which way it will come out. For cases argued on Mondays, we meet in conference on Wednesday afternoon. For cases argued on Tuesdays and Wednesdays, we meet in conference on Friday. At the appointed time the nine members of the Court meet in the conference room. We all shake hands with one another when we come in and we have whatever materials we want with us. As I said before, there is no one in the room except the nine of us. If our conference is interrupted by a knock on the door indicating that there is a message for one of the Justices, the most junior Justice answers the door and delivers it. Justice Stephen S. Breyer, who has come with me on this exchange, has been the junior Justice for seven years, and I suspect he is a little tired of answering the door.
The Chief Justice begins the discussion of the cases that have been argued by reviewing the facts and the decision of the lower court, outlining what he understands is the applicable case law and indicating either that he votes to affirm the decision of the lower court or to reverse it. The discussion then proceeds to the most senior Associate Justice, on down to the most junior Justice. The time taken to discuss any particular case obviously depends upon its complexity. By the time the most junior Justice has finished his discussion, it will usually be evident that a majority of the Court has agreed upon a basis for either affirming or reversing the decision under discussion, and I announce how I am recording the vote so that others may disagree with my count if they believe I am mistaken.
Once we have decided which way a case will come out, we must address the third function of the Court: the preparation of written opinions supporting and explaining the result reached by the majority. And, as I said earlier, there are often separate concurring or dissenting opinions by those Justices who do not agree with the reasoning of the majority opinion.
In every case in which the Chief Justice votes with the majority, he decides who will write the opinion of the Court. If the Chief Justice is not in the majority, the most senior Justice in the majority assigns the case. The assignment of cases is, as you would expect, very important to each member of the Court. The signed opinions are to a very large extent the only visible record of a Justice's work on the Court. As an Associate Justice I eagerly awaited the assignments, and I think my law clerks awaited them more eagerly than I did. If I was assigned 17 or 18 opinions a year, each of my clerks -- who serve for only a year -- might have an opportunity to work on five or six opinions.
When I assign a case to myself, I sit down with the clerk who is responsible for the case and go over my notes and recollections from conference with him. This usually provides an adequate basis for discussion between me and the clerk of the views expressed by the majority at conference, and of the way in which an opinion supporting the result reached by the majority can be drafted. After this discussion, I ask the clerk to prepare a first draft of a Court opinion and to have it for me in ten days or two weeks. That first draft is really a rough draft that I may very well substantially rewrite.
I go through the draft with a view to shortening it, simplifying it, and clarifying it. I have a rule of thumb that I picked up from a lawyer I worked with before I came on the Court: If a sentence takes up more than six lines of type on an ordinary page, it is probably too long. The rule is simple, but I apply it to every draft I review.
After I have revised the draft, I return it to the law clerk, who refines it further. We print the finished product so that we may circulate it to the other chambers. And then we wait to see what the reaction of the other Justices will be, especially those who voted with the majority at conference.
If a Justice agrees with the draft and has no criticisms or suggestions, he will send a letter saying that he would like to join in the opinion. If a Justice agrees with the general import of the draft but wishes changes to be made in it before joining, a letter to that effect will be sent. The Justice who is writing the opinion will, if possible, accommodate the suggested changes.
The senior Justice among those who disagree with the result reached by the majority at conference usually assigns the preparation of the dissenting opinion in the case, if there is to be one. The draft dissent will be circulated in due course.
The decision-making process has now been completed. A case in which certiorari was granted somewhere from six months to a year ago has been briefed, orally argued and now finally decided by the Supreme Court of the United States.
That concludes my remarks this morning. Thank you for the opportunity to speak to you. I wish you luck in your studies and would be happy to respond to a few questions.