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The number of petitions for review calendared for each standard conference runs in the 100 to 300 range. In all, the Court currently receives between 6,000 and 7,000 requests for review annually.
(It takes four votes—one less than a majority—to grant a petition for review.) If review is granted, we schedule the case for full briefing and oral argument.
Chief Justice circulates a “discussion list” selecting from the many pages of petitions scheduled for conference the dozen or so he thinks worthy of discussion.
Original jurisdiction cases generally involve controversies between two states—or a state and the United States—often over boundaries, land ownership, or water rights. An example from several years ago, New Jersey and New York crossed swords over ownership of the land-filled portions of Ellis Island, the island that once served as the admissions station for immigrants from Europe to the United States. New Jersey prevailed in that fray.)
“We are not final because we are infallible, but we are infallible only because we are final.”
For the lawyers, oral argument is a direct opportunity to reach those nine minds—with an idea, a phrase, a fact. Not many cases are won at argument, but [a case] can be lost if a lawyer is unable or unwilling to answer a Justice’s question [honestly and persuasively].
I am comforted, at such times, by a comment made by Chief Justice Hughes, who presided from 1930 until 1941. Hughes said that during the many years he served on the Court he always tried to write his opinions logically and clearly, but if another Justice whose vote was necessary to make a majority insisted that particular language be put in, in it went, and let the law schools figure out what it meant!
I prefer and continue to aim for opinions that both get it right, and keep it tight, without undue digressions
One of the most important tasks of the judiciary is to protect the individual from the power of the state. This includes protecting minorities, often unpopular minorities, from the wrath of the majority. . . . [I]f [the judge] were to have to submit [herself] periodically to election, [she] would find this harder to do.
As experience in the United States and elsewhere confirms, however, judicial independence is vulnerable to assault; it can be shattered if the society law exists to serve does not take care to ensure its preservation.
Two developments, manifest by the end of 1937, contributed to the defeat of Roosevelt’s plan: a groundswell of public opposition to the president’s endeavor to capture the Court, and a growing understanding among the Justices that it was appropriate to defer to legislative judgments on matters of social and economic policy. FDR’s idea has never been renewed.
‘Democracy is not only majority rule. Democracy is also the rule of basic values . . . values upon which the whole democratic structure is built, and which even the majority cannot touch.’ ”
wouldn’t call it [that], but it’s not every day when you’re 61 years old and get a chance to have a new job.”
If [a Bill of Rights is] incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark . . . naturally led to resist every encroachment upon rights . . . stipulated for in the Constitution by the declaration of rights.2
“the least dangerous” branch of government, for judges hold neither the sword nor the purse of the community; ultimately, they must depend upon the political branches to effectuate their judgments.4 Mindful
founders stated a commitment in the Declaration of Independence to equality and in the Declaration and the Bill of Rights to individual liberty. Those commitments had growth potential. As historian Richard Morris has written, a prime portion of the history of the U.S. Constitution is the story of the extension (through amendment, judicial interpretation, and practice) of constitutional rights and protections to once-excluded groups: to people who were once held in bondage, to men without property, to Native Americans, and to women.16
A judgment that is too long indicates uncertainty.
“It is more important that the applicable rule of law be settled than that it be settled right.” “This is commonly true,” Brandeis continued, “even where the error is a matter of serious concern, provided correction can be had by legislation.”32 Revered
As Justice William J. Brennan said in thoughtful defense of dissents: “None of us, lawyer or layman, teacher or student, in our society must ever feel that to express a conviction, honestly and sincerely maintained, is to violate some unwritten law of manners or decorum.”45
The most effective dissent, I am convinced, “stand[s] on its own legal footing”;60 it spells out differences without jeopardizing collegiality or public respect for and confidence in the judiciary.
Moving from the style to the substance of Third Branch decisionmaking, I will stress in the remainder of these remarks that judges play an interdependent part in our democracy. They do not alone shape legal doctrine but, as I suggested at the outset, they participate in a dialogue with other organs of government, and with the people as well.76 “Judges do and must legislate,” Justice Holmes “recognized without hesitation,” but “they can do so,” he cautioned, “only interstitially; they are confined from molar to molecular motions.”77
The Supreme Court, particularly, was labeled “activist” or “imperial,” and its precarious position as final arbiter of constitutional questions was exposed.133
the end of the Jim Crow era came in 1967, thirteen years after Brown: the case was Loving v. Virginia,142 the law under attack, a state prohibition on interracial marriage. In holding that law unconstitutional, the Court effectively ruled that, with regard to racial classifications, the doctrine of “separate but equal” was dead—everywhere and anywhere within the governance of the United States.143
Justices generally follow, they do not lead, changes taking place elsewhere in society.146
the Court, through constitutional adjudication, can reinforce or signal a green light for a social change.
The good judge, Professor Gunther said, is “openminded and detached . . . heedful of limitations stemming from the judge’s own competence and, above all, from the presuppositions of our constitutional scheme; th[at] judge . . . recognizes that a felt need to act only interstitially does not mean relegation of judges to a trivial or mechanical role, but rather affords the most responsible room for creative, important judicial contributions.”151
John Jay, first Chief Justice of the United States, expressed the common understanding. He wrote, in 1793, that, “by taking a place among the nations of the earth,” the United States had “become amenable to the law of nations.” That term, “law of nations,” is the core of what we today call international law.
in the two centuries since John Marshall headed the U.S. judiciary, both federal and state courts have understood the difference: international law is part of our law; foreign law is not, but we can be informed by how jurists abroad have resolved problems resembling those we face.
Antonin Scalia, for example, counsels: The Court “should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”
source of constant embarrassment to this Government in the day-to-day conduct of its foreign relations; and it jeopardizes the effective maintenance of our moral leadership of the free and democratic nations of the world.
“Special measures taken for the [sole] purpose of securing adequate advancement of certain racial or ethnic groups . . . shall not be deemed racial discrimination.” Next, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women excludes from the definition of discrimination the “[a]doption . . . of temporary special measures aimed at accelerating de facto equality between men and women.”
My experience confirms that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation.
He once explained: one must husband resources; dissenting too often will weaken the force of a dissent when it becomes important to write.
“A dissent in a court of last resort is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
Another genre of dissent looks not to a distant future day, but seeks immediate action from the political branches of government—Congress and the president. Dissents of this order aim to engage or energize the public and propel prompt legislative overruling of the Court’s decision.
To sum up, although I appreciate the value of unanimous opinions, I will continue to speak in dissent when important matters are at stake. I stress important matters because I try to follow Justice Brandeis’ counsel. He cautioned that in most matters of statutory interpretation, “it is more important that [the applicable] rule of law be settled than that it be settled right.” One might put in that category ambiguous provisions of complex legislation—for
random dissents . . . weaken the institutional impact of the Court and handicap it in the doing of its fundamental job. Dissents . . . need to be saved for major matters if the Court is not to appear indecisive and quarrelsome. . . .
“Throwing out preclearance when it has worked and is continuing to work is like throwing away your umbrella in a rainstorm because you are not getting wet.”
“and therefore appeals to the intelligence of a future day.”
“[l]iberty finds no refuge in a jurisprudence of doubt.”
To the 67, the same number we selected last Term, add 12 per curiam decisions—opinions rendered without full briefing or oral argument. That brings total opinions produced to 79.
