Supreme Court at Work

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SUPREME COURT AT WORK

In its first decade, the Supreme Court had little business, frequent turnover in personnel, no chambers or staff, no fixed customs, and no institutional identity. When the Court initially convened on February 1, 1790, only Chief Justice john jay and two other Justices arrived at the Exchange Building in New York City. They adjourned until the next day, when Justice john blair arrived. With little to do other than admit attorneys to practice before its bar, the Court concluded its first sessions in less than two weeks. When the capital moved from New York City to Philadelphia in the winter of 1790, the Court met in Independence Hall and in the Old City Hall for ten years, until the capital again moved to Washington, D.C. Most of the first Justices' time, however, was spent riding circuit. Under the judiciary act of 1789, they were required twice a year to hold circuit court, in the company of district judges, to try some types of cases and to hear appeals from the federal district courts. Hence, the Justices resided primarily in their circuits rather than in Washington and often felt a greater allegiance to their circuits than to the Supreme Court.

When the capital moved to Washington, D.C., in 1800, no courtroom was provided. Between 1801 and 1809, the Justices convened in various rooms in the basement of the Capitol. In 1810, they shared a room in the capitol with the Orphans' Court of the district of columbia. This room was destroyed when the British burned the Capitol on August 24, 1814, and for two years, the Court met in the Bell Tavern. In 1817, the Court moved back into the Capitol, holding sessions in a small dungeonlike room for two years. In 1819, it returned to its restored courtroom, where it met for almost half a century.

For most of the nineteenth century, the Justices resided in their circuits and stayed in boardinghouses during the Court's terms. Chief Justice roger brooke taney (1836–1864) was the first to reside in the Federal City, and as late as the 1880s most Justices did not maintain homes there. Lacking offices and sharing the law library of Congress, the Justices relied on a single clerk to answer correspondence, collect fees, and to locate boardinghouse rooms for them.

Coincident with the 1801 move into the Capitol, john marshall assumed the Chief Justiceship. During his thirty-four years on the Court, Marshall established regularized procedures and a tradition of collegiality. He saw to it that the Justices roomed in the same boardinghouse and, thereby, turned the disadvantage of transiency into strategic opportunity for achieving unanimity in decision making. After a day of hearing oral arguments, the Justices would dine together, and around 7:00 p.m. they would discuss cases.

After 1860, the Court met upstairs in the old Senate Chamber, between the new chambers of the Senate and those of the House of Representatives. The Justices still had no offices or staff of their own. After the civil war, however, the caseload steadily grew, the Court's terms lengthened, and the Justices deserted boardinghouses for fashionable hotels along Pennsylvania Avenue. Instead of dining together and discussing cases after dinner, they held conferences on Saturdays and announced decisions on Monday.

By the turn of the century, the Justices resided in the capitol and for the most part worked at home, where each had a library and employed a messenger and a secretary. The Court's collegial procedures had evolved into institutional norms based on majority rule. The chief justice assumed a special role in scheduling and presiding over conferences and oral arguments. But the Court's deliberative process was firmly rooted in the Justices' interaction as equals. Each Justice was considered a sovereign in his or her own right, even though the Justices decided cases together and strove for institutional opinions.

After becoming Chief Justice in 1921, william howard taft persuaded four Justices to support his lobbying Congress for the construction of a building for the Court. Taft envisioned a marble temple symbolizing the modern Court's prestige and independence. Yet, when the building that houses the Court was completed in 1935, none of the sitting Justices moved in, although sessions and conferences were held there in the later years of the hughes court (1930–1941). Upon his appointment in 1937, hugo l. black was the first to move in, leading the way for President franklin d. roosevelt's other appointees. Even when harlan fiske stone was elevated from Associate to Chief Justice, he still worked at home. The vinson court (1946–1953) was the first to see all nine Justices regularly working in the Supreme Court building.

The marble temple stands for more than a symbol of the modern Court. Once again, the institutional life of the Court changed. As Taft hoped, the building buttressed the Court's prestige and reinforced the basic norms of secrecy, tradition, and collegiality that condition the Court's work. The Justices continued to function independently, but the work of the Court grew more bureaucratic. Along with the rising caseload in the decades following world war ii, the number of law clerks more than tripled and the number of other employees dramatically increased as well. The Justices in turn delegated more and incorporated modern office technology and managerial practices into their work. The warren court (1953–1969) started delivering opinions on any day of open session, and the burger court (1969–1986) moved conferences back to Fridays.

When potter stewart joined the Court in 1958, he expected to find "one law firm with nine partners, if you will, the law clerks being the associates." But Justice john marshall harlan told him, "No, you will find here it is like nine firms, sometimes practicing law against one another." Even today, each Justice and his or her staff works in rather secluded chambers with little of the direct daily interaction that occurs in some appellate courts. Nor do recent Justices follow felix frankfurter's practice of sending clerks ("Felix's happy hotdogs") scurrying around the building to lobby other clerks and Justices.

A number of factors isolate the Justices, but most important is the caseload. The Justices, in Justice byron r. white's view, "stay at arm's length" and rely on formal printed communications because the workload discourages them "from going from chamber to chamber to work things out." Each chamber averages about seven: the Justice, three to four law clerks, two secretaries, and a messenger. As managing chambers and supervising paperwork consumes more time, the Justices talk less to each other and read and write more memoranda and opinions. Each chamber now has a photocopying machine and four to five terminals for word processing and legal research.

Law clerks became central to the work of the Court. In 1882, Justice horace gray initiated the practice of hiring a "secretary" or law clerk. When oliver wendell holmes, jr. succeeded Gray, he continued the practice, and other Justices gradually followed. By Chief Justice Stone's time it was well established for each Justice to have one clerk. During the chief justiceships of fred m. vinson and earl warren, the number increased to two. In the 1970s, the number grew to three and to four. The number of secretaries likewise increased—initially, in place of adding clerks and, later, to assist the growing number of clerks. A Legal Office, staffed by two attorneys, was created in 1975 to assist with cases in the Court's original jurisdiction and with expedited appeals.

Although the duties and functions of clerks vary with each chamber, all share certain commonly assigned responsibilities. Most notably, Justices have delegated to them the task of initially screening all filings for writs of certiorari. This practice originated with the handling of indigents ' petitions by Chief Justice charles evans hughes and his clerks. Unlike the "paid" petitions that are filed in multiple copies, an indigent's petition is typically a handwritten statement. Except when an unpaid petition raised important legal issues or involved a capital case, Hughes neither circulated the petitions to the other Justices nor discussed them at conference. Stone, Vinson, and Warren, however, circulated to the chambers their clerks' memoranda, which summarized the facts and questions presented, and recommended whether the case should be denied, dismissed, or granted a review. But Chief Justice warren e. burger refused to have his clerks shoulder the entire burden of screening these petitions. And in 1972, a majority of the Justices began to pool their clerks, dividing up all paid and unpaid filings and having a single clerk's certiorari memo circulate to those Justices participating in what is called "the cert. pool." With more than a hundred filings each week, even those Justices who objected to the "cert. pool" have found it necessary to give their clerks considerable responsibility for screening petitions. Justice john paul stevens describes his practice: "[The clerks] examine them all and select a small minority that they believe I should read myself. As a result, I do not even look at the papers in over 80 percent of the cases that are filed."

Law clerks have also assumed responsibility for the preliminary drafting of the Justices' opinions. Chief Justice william h. rehnquist's practice, for instance, is to have one of his clerks do a first draft, without bothering about style, in about ten days. Before beginning work on an opinion, Rehnquist goes over the conference discussion with the clerk and explains how he thinks "an opinion can be written supporting the result reached by the majority." Once the clerk finishes a draft and Rehnquist works the draft into his own opinion, it circulates three or four times among the other clerks in the chambers before it circulates to the other chambers.

In addition to law clerks, five officers and their staffs also assist the Justices. Central to the Court's work is the Office of the Clerk. For most of the Court's history, the clerk earned no salary, but this changed in 1921 when Taft lobbied for legislation making the clerk a salaried employee. The clerk's office collects filing and admission fees; receives and records all motions, petitions, briefs, and other documents; and circulates those necessary items to each chamber. The clerk also establishes the oral-argument calendar and maintains the order list of cases granted or denied review and final judgments. In 1975, the office acquired a computer system that automatically notifies counsel in over ninety-five percent of all cases of the disposition of their filings.

There was no official reporter of decisions during the first quarter-century of the Court, and not until 1835 were the Justices' opinions given to the clerk. Early reporters worked at their own expense and for their own profit. In 1922, Congress established the present arrangement (at Chief Justice Taft's request): the reporter's salary is fixed by the Justices and paid by the government, and the Government Printing Office publishes the United States Reports. The reporter has primary responsibility for supervising the publication of the Court's opinions, writing headnotes or syllabi that accompany each opinion, and for making editorial suggestions subject to the Justices' approval.

Order in the courtroom was preserved by U.S. marshals until 1867, when Congress created the Office of Marshal of the Supreme Court. The Marshal not only maintains order in the courtroom and times oral arguments but also oversees building maintenance and serves as business manager for the more than two hundred Court employees, including messengers, carpenters, police and workmen, a nurse, physiotherapist, barber, seamstress, and cafeteria workers.

The Justices acquired their first small library in 1832. It was run by the clerk until the marshal's office took over in 1884. In 1948, Congress created the Office of the Librarian, which employs several research librarians to assist the Justice.

Unlike other members of the Court, the Chief Justice has special administrative duties. Over fifty statutes confer duties ranging from chairing the judicial conference and the Federal Judicial Center to supervising the Administrative Office of the U.S. Courts and serving as chancellor of the Smithsonian Institution. Unlike Taft and Hughes, Stone felt overwhelmed by these duties. His successor, Vinson, appointed a special assistant to deal with administrative matters, whereas Warren delegated such matters to his secretary. By contrast, Burger became preoccupied with administrative matters and pushed for judicial reforms. In historical perspective, he brought Taft's marble temple into the world of modern technology and managerial practices. Burger also lobbied Congress to create a fifth legal officer of the Court, the administrative assistant to the Chief Justice. While also employing an administrative assistant, Chief Justice Rehnquist has less interest in judicial administration, and his assistant is less occupied with liaison work with organizations outside the Court.

The caseload remains the driving force behind the Court's work; its increase has changed the Court's operations. After Taft campaigned for relief for the Court, Congress passed the judiciary act of 1925, which enlarged the Court's discretionary jurisdiction and enabled it to deny cases review. Subsequently, on a piecemeal basis, the Court's discretion over its jurisdiction was further expanded, and in 1988, virtually all mandatory appeals were eliminated. As a result, the Court has the power to manage its docket and set its agenda for decision making.

The cornerstone of the modern Court's operation, in Justice John Harlan's words, "is the control it possesses over the amount and character of its business." The overwhelming majority of all cases are denied review; less than three percent of the more than 5,000 cases on the Court's annual docket are granted and decided by fully written opinion.

When a petition is filed at the Court, the clerk's staff determines whether it satisfies the rules as to form, length, and fees. After receiving opposing papers from respondents, the clerk circulates to the chambers a list of cases ready for consideration and a set of papers for each case. For much of the Court's history, every Justice reviewed every case, but this practice no longer prevails. Since the creation of the "cert. pool" in 1972, most of the Justices have delegated to their clerks much of this initial screening task. Moreover, the Court has found it necessary to hold its initial conference in the last week of September, before the formal opening of its term. At this conference, the Justices dispose of more than 1,000 cases, discussing less than two hundred. Before the start of the term, the Court has thus disposed of approximately one-fifth of its entire docket, with more than four-fifths of those cases effectively screened out by law clerks and never collectively considered by the Justices.

In conference, attended only by the Justices, the Court decides which cases to accept and discusses the merits of argued cases. During the weeks in which the Court hears oral arguments, conferences are held on Wednesday afternoons to take up the four cases argued on Monday, and then on Fridays to discuss new filings and the eight cases argued on Tuesday and Wednesday. In May and June, when oral arguments are not heard, conferences are held on Thursdays, from 10:00 a.m. to 4:00 p.m., with a forty-five-minute lunch break around 12:30 p.m.

Summoned by a buzzer five minutes before the hour, the Justices meet in their conference room, located directly behind the courtroom itself. Two conference lists circulate to each chamber by noon on the Wednesday before a conference. On the first list are those cases deemed worth discussing; typically, the discuss list includes about fifty cases. Attached is a second list, the "Dead List," containing those cases considered unworthy of discussion. Any Justice may request that a case be discussed, but over seventy percent of the cases on the conference lists are denied review without discussion.

For a case to be heard by the Court, at least four Justices must agree that it warrants consideration. This informal rule of four was adopted when the Justices were trying to persuade Congress that important cases would still be decided after the Court was given discretionary controll over much of its jurisdiction under the Judiciary Act of 1925, Unanimity in case selection, nevertheless, remains remarkably high becaues the Justices agree that only a limited number of cases may be taked. "As a rule of thumb," Justice White explains, "the Court should not be expected to produce more than 150 opinions per term in argued cases." The rule of four, however, also permits an ideological bloc to grant review in cases it wants to hear and thus to influence the Court's agenda.

Since the Chief Justice presides over conferences, he has significant opportunities for structuring and influencing the Court's work. Chief Justices, however, vary widely in their skills, style, and ideological orientations. Hughes is widely considered to be the greatest Chief Justice in this century because of his photographic memory and ability to state concisely the relative importance of each case. "Warren was closer to Hughes than any others," in Justice william o. douglas's view, and "Burger was closer to Vinson. Stone was somewhere in between." Rehnquist, by all accounts, is an effective Chief Justice because he moves conferences along quickly and has the intellectual and temperamental wherewithal to be a leader.

For a case to be heard by the Court, at least four Justices must agree that it warrants consideration. This informal rule of four was adopted when the Justices were trying to persuade Congress that important cases would still be decided after the Court was given discretionary control over much of its jurisdiction under the Judiciary Act of 1925. Unanimity in case selection, nevertheless, remains remarkably high because the Justices agree that only a limited number of cases may be taken. "As a rule of thumb," Justice White explains, "the Court should not be expected to produce more than 150 opinions per term in argued cases." The rule of four, however, also permits an ideological bloc to grant review in cases it wants to hear and, thus, to influence the Court's agenda.

Immediately after conference, the Chief Justice traditionally had the task of reporting to the clerk which cases were granted review, which were denied review, and which were ready to come down. Burger, however, delegated this task to the junior Justice. The clerk then notifies both sides in a case granted review that they have thirty days to file briefs on merits and supporting documents. Once all briefs (forty copies of each) are submitted, cases are scheduled for oral argument.

The importance of oral argument, Chief Justice Charles Evans Hughes observed, lies in the fact that often "the impression that a judge has at the close of a full oral argument accords with the conviction which controls his final vote." Because the Justices vote in conference within a day or two of hearing arguments, oral arguments come at a crucial time. Still, oral arguments were more prominent in the work of the Court in the nineteenth century. Unlimited time was allowed, until the Court began cutting back on oral argument in 1848, allowing eight hours per case. The time has been reduced periodically, and since 1970, arguments have been limited to thirty minutes per side. The argument calendar permits hearing no more than 180 cases a year. For fourteen weeks each term, from the first Monday in October until the end of April, the Court hears arguments from 10:00 to 12:00 and 1:00 to 3:00 on Monday, Tuesday, and Wednesday about every two weeks.

Justices differ in their preparation for oral arguments. Douglas insisted that "oral arguments win or lose a case," but Chief Justice Earl Warren claimed that they were "not highly persuasive." Most Justices come prepared with "bench memos" drafted by their law clerks, identifying the central facts, issues, and possible questions. On the bench, they also vary in their style and approach toward questioning attorneys. Justices sandra day o'connor and antonin scalia, for example, are aggressive and relentless in the questioning of attorneys, while Justices william j. brennan and harry a. blackmun tend to sit back and listen.

Conference discussions following oral arguments no longer play the role they once did. When the docket was smaller, conferences were integral to the Court's work. Cases were discussed in detail, differences hammered out, and the Justices strove to reach agreement on an institutional opinion for the Court. As the caseload grew, conferences became largely symbolic of past collective deliberations. They currently serve only to discover consensus. "In fact," Justice Scalia points out, "to call our discussion of a case a conference is really something of a misnomer. It's much more a statement of the views of each of the nine Justices."

Most of the time spent in conference is consumed by the Justices deciding which cases should be granted review. Moreover, less time is spent in conference (now about 108 hours) each term. The caseload and conference schedule permits on average only about six minutes for each case on the discuss list and about twenty-nine minutes for those granted full consideration. Perhaps as a result, the Justices agree less often on the opinion announcing the Court's decision and file a greater number of separate opinions. In short, the combination of more cases and less collective deliberation discourages the compromises necessary for institutional opinions and reinforces the tendency of the Justices to function independently.

All votes at conference are tentative until the final opinion comes down. Voting thus presents each Justice with opportunities to negotiate which issues are to be decided and how they are to be resolved. Before, during, and after conference, Justices may use their votes in strategic ways to influence the outcome of a case. At conference, a Justice may vote with others who appear to constitute a majority, even though the Justice may disagree with their reasoning. The Justice may then suggest changes in draft opinions to try to minimize the damage, from his or her perspective, of the Court's decision.

Because conference votes are tentative, the assignment, drafting, and circulation of opinions is crucial to the Court's work. Opinions justify or explain votes at conference. The opinion of the court is the most important and most difficult to write because it represents a collective judgment. Writing the Court's opinion, as Justice Holmes put it, requires that a "judge can dance the sword dance; that is he can justify an obvious result without stepping on either blade of opposing fallacies." Because Justices remain free to switch votes and to write separate opinions, concurring in or dissenting from the Court's decision, they continue after conference to compete for influence on the final decision and opinion.

The power of opinion assignment is the Chief Justice's "single most influential function," observed Justice tom c. clark, and an exercise in "judicial-political discretion." By tradition, when the Chief Justice votes with the majority, he assigns the Court's opinion. If the Chief Justice is not with the majority, then the senior Associate Justice in the majority either writes the opinion or assigns it to another Justice.

Chief Justices may keep the Court's opinion for themselves, especially when a case is unanimously decided. Since Vinson, however, Chief Justices have generally sought parity in their opinion assignments. Opinions may be assigned to pivotal Justices to ensure or expand the size of the majority joining the opinion for the Court. But the Chief Justice may also take other factors into account, such as a Justice's expertise or what kind of reaction a ruling may engender. Hughes, for example, was inclined to assign the opinions in "liberal" decisions to "conservative" Justices.

The circulation of draft opinions among the chambers has added to the Supreme Court's workload and changed its deliberative process. The practice of circulating draft opinions began around 1900 and soon became pivotal in the Court's decision-making process, especially with the Justices spending less time in conference discussing and reconciling their differences. Occasionally, proposed changes in a draft opinion will lead to a complete recasting or to having the opinion reassigned to another Justice. To accommodate the views of others, the author of an opinion for the Court must negotiate language and bargain over substance. At times, however, Justices may not feel that a case is worth fighting over; as Justice george sutherland noted on the back of one of Stone's drafts, "probably bad—but only a small baby. Let it go."

Final published opinions for the Court are the residue of compromises among the Justices. But they also reflect changing norms in the work of the Court. Up until the 1930s, there were few concurring or dissenting opinions. But individual opinions now predominate over opinions for the Court. When the Court's practice in the 1980s is compared with that of forty years ago, there are roughly ten times the number of concurring opinions, four times more dissenting opinions, and seven times the number of separate opinions in which the Justices explain their views and why they concur and dissent from parts of the Court's opinion. Even though the business of the Court is to give institutional opinions, as Justice Stewart observed, "that view has come to be that of a minority of the Justices."

The Justices are more interested in merely the tally of votes at conference than in arriving at a consensus on an institutional decision and opinion. As a result, whereas unanimity remains high on case selection (around eighty percent), unanimous opinions for the Court count for only about thirty percent of the Court's written opinions. The number of cases decided by a bare majority also sharply grew in the 1970s and 1980s, and frequently, no majority could agree on an opinion announcing the Court's rulings.

A Justice writing separate concurring or dissenting opinions carries no burden of massing other Justices. Concurring opinions explain how the Court's decision could have been otherwise rationalized. A concurring opinion surely is defensible when a compromised opinion might be meaningless or impossible to achieve. The cost of concurring opinions is that they add to the workload and may create confusion over the Court's rulings.

A dissenting opinion, in the words of Chief Justice Hughes, appeals "to the brooding spirit of the law, 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." Even the threat of a dissent may be useful in persuading the majority to narrow its holding or tone down the language of its opinion.

The struggles over the work of the Court (and among the Justices) continue after the writing of opinions and final votes. Opinion days, when the Court announces its decisions, may reveal something of these struggles and mark the beginning of larger political struggles for influence within the country.

Decisions are announced in the courtroom, typically crowded with reporters, attorneys, and spectators. Before 1857, decisions came down on any day of the week, but thereafter they were announced only on Mondays. In 1965, the Court reverted to its earlier practice, and in 1971, the Justices further broke with the tradition of "Decision Mondays." On Mondays, the Court generally releases memorandum orders and admits new attorneys to its bar. In weeks when the Justices hear oral arguments, opinions are announced on Tuesdays and Wednesdays and then on any day of the week during the rest of the term. By tradition, there is no prior announcement of the decisions to be handed down. In 1971, the practice of reading full opinions was abandoned; typically, only the ruling and the line-up of the Justices is stated.

Media coverage of the Court's work has grown since the 1930s, when fewer than a half-dozen reporters covered the Court and shared six small cubicles on the ground floor, just below the courtroom, where they received copies of opinions sent down through pneumatic tube. In 1970, the Court established a Public Information Office, which provides space for a "press room" and makes available all filings and briefs for cases on the docket, as well as the Court's conference lists and final opinions. More than fifty reporters and all major television networks currently cover the Court, although cameras are still not allowed in the courtroom.

When deciding major issues of public law and policy, Justices may consider strategies for winning public acceptance of their rulings. When holding "separate but equal" schools unconstitutional in 1954 in brown v. board of education, for instance, the Court waited a year before issuing its mandate for "all deliberate speed" in ending school segregation. Some of the Justices sacrificed their preference for a more precise guideline in order to achieve a unanimous ruling, and the Court tolerated lengthy delays in the implementation of Brown, in recognition of the likelihood of open defiance.

Although the Justices are less concerned about public opinion than are elected public officials, they are sensitive to the attitudes of their immediate "constituents": the solicitor general, the attorney general and department of justice, counsel for federal agencies, states' attorneys general, and the legal profession. These professionals' responses to the Court's rulings help determine the extent of compliance. With such concerns in mind, Chief Justice Warren sought to establish an objective bright-line rule that police could not evade, when holding, in miranda v. arizona (1966), that police must inform criminal suspects of their Fifth Amendment right against self-incrimination and their Sixth Amendment right to counsel, which included the right to consult and have the presence of an attorney during police interrogation. The potential costs of securing compliance may also convince the Justices to limit the scope or application of their decisions.

Compliance with the Court's decisions by lower courts is uneven. They may extend or limit decisions in anticipation of later rulings. Ambiguities created by plurality opinions, or 5–4 decisions invite lower courts to pursue their own policy goals. Differences between the facts on which the Court ruled and the circumstances of a case at hand may be emphasized so as to reach a different conclusion.

Major confrontations between Congress and the Court have occurred a number of times, and Congress has tried to pressure the Court in a variety of ways. The Senate may try to influence the appointment of supreme court justices, and Justices may be impeached. More frequently, Congress has tried to pressure the Court when setting its terms and size and when authorizing appropriations for salaries, law clerks, secretaries, and office technology. Only once, in 1802, when repealing the judiciary act of 1801 and abolishing a session for a year, did Congress actually set the Court's term in order to delay and influence a particular decision. The size of the Court is not preordained, and changes generally reflect attempts to control the Court. The Jeffersonian Republicans' quick repeal of the act passed by the federalists in 1801, reducing the number of Justices, was the first of several attempts to influence the Court. Presidents james madison, james monroe, and john adams all claimed that the country's geographical expansion warranted increasing the number of Justices. Congress, however, refused to do so until the last day of andrew jackson's term in 1837. During the Civil War, the number of Justices increased to ten. This was ostensibly due to the creation of a circuit in the West, but it also gave abraham lincoln his fourth appointment and a chance to secure a pro-Union majority on the bench. Antagonism toward andrew johnson'sreconstruction policies, then, led to a reduction from ten to seven Justices. After General ulysses s. grant's election, Congress again authorized nine Justices. In the nineteenth century at least, Congress rather successfully denied Presidents additional appointments in order to preserve the Court's policies, and increased the number of Justices so as to change the ideological composition of the Court.

More direct attacks are possible. Under Article III, Congress is authorized "to make exceptions" to the Court's apellate jurisdiction. This has been viewed as a way of denying the Court review of certain kinds of cases. But Congress succeeded only once in affecting the Court's work in this way; an 1868 repeal of jurisdiction over writs of habeas corpus was upheld in Ex Parte McCardle (1869).

Court-curbing legislation is not a very viable weapon. Congress has greater success in reversing the Court by constitutional amendment, which three-fourths of the states must ratify. The process is cumbersome, and thousands of amendments to overrule the Court have failed. But four rulings have been overturned by constitutional amendment. chisholm v. georgia (1793), holding that citizens of one state could sue another state in federal courts, was reversed by the eleventh amendment, guaranteeing sovereign immunity for states from suits by citizens of other states. The thirteenth amendment and fourteenth amendment, abolishing slavery and making blacks citizens of the United States, technically overturned dred scott v. sandford (1857). With the ratification in 1913 of the sixteenth amendment, Congress reversed pollock v. farmers ' loan and trust company (1895), which had invalidated a federal income tax. In 1970, an amendment to the voting rights act of 1965 lowered the voting age to eighteen years for all elections. Although signing the act into law, President richard m. nixon had his attorney general challenge the validity of lowering the voting age in state and local elections. Within six months, in oregon v. mitchell (1970), a bare majority held that Congress had exceeded its power. Less than a year later, the twenty-sixth amendment was ratified, thereby overriding the Court's ruling and extending the franchise to eighteen-year-olds in all elections.

Even more successful are congressional enactments and rewriting of legislation in response to the Court's rulings. Congress, of course, cannot overturn the Court's interpretations of the Constitution by mere legislation. But Congress may enhance or thwart compliance with its rulings. After the landmark ruling in gideon v. wainwright (1963) that indigents have a right to counsel, for instance, Congress provided attorneys for indigents charged with federal offenses. By contrast, in the Crime Control and Safe Streets Act of 1968, Congress permitted federal courts to use evidence obtained from suspects who had not been read their Miranda rights if their testimony appeared voluntary based on the "totality of the circumstances" surrounding their interrogation.

Congress may also openly defy the Court's rulings. When holding in immigration and naturalization service v. chadha (1983) that Congress may not delegate decision-making authority to federal agencies and still retain the power of vetoing decisions with which it disagrees, the Court invalidated over two hundred provisions for congressional vetoes of administrative actions. Congress largely responded by deleting or substituting joint resolutions for one-House veto provisions. However, in the year following Chadha, Congress passed no less than thirty new provisions for legislative vetoes.

Congress indubitably has the power to delay and undercut implementation of the Court's rulings. On major issues of public policy, Congress is likely to prevail or at least temper the impact of the Court's rulings.

The Court has often been the focus of presidential campaigns and power struggles as well. Presidents rarely openly defy particular decisions by the Court, and in major confrontations, they have tended to yield. Still, presidential reluctance to enforce rulings may thwart implementation of the Court's rulings. In the short and long run, Presidents may undercut the Court's work by issuing contradictory directives to federal agencies and assigning low priority for enforcement by the Department of Justice. Presidents may also make broad moral appeals in response to the Court's rulings, and those appeals may transcend their limited time in office. The Court put school desegregation and abortion on the national political agenda. Yet john f. kennedy's appeal for civil rights captivated a generation and encouraged public acceptance of the Court's ruling in Brown v. Board of Education. Similarly, ronald reagan's opposition to abortion focused attention on "traditional family values" and served to legitimate resistance to the Court's decisions.

Presidential influence over the Court in the long run remains contingent on appointments to the Court. Vacancies occur on the average of one every twenty-two months, and there is no guarantee as to how a Justice will vote or whether that vote will prove the key to limiting or reversing past rulings with which a President disagrees. Yet through their appointments, Presidents leave their mark on the Court and possibly align it and the country or precipitate later confrontations.

The Supreme Court at work is unlike any other. It has virtually complete discretion to select which cases are reviewed, to control its work load, and to set its own substantive agenda. From the thousands of cases arriving each year, less than two hundred are accepted and decided. The Court thus functions like a superlegislature. But the Justices' chambers also work like nine separate law offices, competing for influence when selecting and deciding those cases. The Justices no longer spend time collectively deliberating cases at conference. Instead, they simply tally votes and then hammer out differences, negotiating and compromising on the language of their opinions during the postconference period when drafts are circulated among the chambers. When the final opinions come down, the Court remains dependent on the cooperation of other political branches and public acceptance for compliance with its rulings. The work of the Court, in Chief Justice edward d. white's words, "rests solely upon the approval of a free people."

David M. O' Brien
(1992)

(see also: Jeffersonianism.)