HISTORY/Choosing Cases

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Choosing Cases

The justices determine which cases to take. They never explain the reason for their choices.

Whether or not a case is accepted "strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment," Rehnquist wrote in "The Supreme Court: How It Was, How It Is," his 1987 book about the court.

Important factors, he said, are whether the legal question has been decided differently by two lower courts and needs resolution by the high court, whether a lower-court decision conflicts with an existing Supreme Court ruling and whether the issue could have significance beyond the two parties in the case.

Room where justices choose cases
In this room the justices meet to decide which cases to hear. The most senior associate justices use the roomier side at the left, backs to the warm fireplace. (The Post – Ray Lustig)

For example, the justices likely accepted the sexual-harassment case brought by Paula Jones, a former Arkansas state employee, against President Clinton because it will test the important question of whether a president should have to defend himself against a lawsuit while in office.

They also agreed for the term that began Monday to review a case challenging the constitutionality of a federal handgun-registration law, no doubt in part because lower courts are divided about whether the law, which requires sheriffs to check a purchaser's background, unconstitutionally burdens local officials.

But the justices do not automatically take on all cases posing significant societal dilemmas. Last June, for example, they refused to hear one on the legality of college affirmative action programs. The case did not garner the four votes needed to accept a petition for review and to schedule oral arguments on it.

Before those votes are cast in the closed-door session, however, a case must pass muster with several of the youngest, least experienced lawyers in America – the 36 law clerks who serve the nine individual justices and who, in effect, are their staff for a term. These clerks, most often four to a justice, usually are recent law school graduates and typically the cream of their Ivy League schools.

It is the clerks who first winnow the 7,000 or so annual petitions, settling on the select few that they believe the justices themselves should consider. There is no set number or quota for each week's conference.

With the clerks' memos in hand and in the closed conference room, the justices summarily reject most of the appeals. They discuss petitions flagged by one or more of the justices. Then, according to justices' public accounts over the years, they vote aloud, one at a time by seniority but starting with the chief justice.

While the chief justice leads the meeting, the most junior justice, now Stephen G. Breyer, makes handwritten notes that will be passed to a clerk for public announcement of disposition of petitions. Rehnquist is known for running a brisk session. "Bam! Bam! Bam!" one associate justice said in describing the group's swift disposition of cases.

Among the richest sources of inside information about the court are the papers of the late Justice Thurgood Marshall (1967-1991). They describe negotiations as cases moved through the process. They show, for example, that only by the bare minimum of four votes did the justices accept a case that eventually yielded an important 1990 ruling on religious freedom.

As is his responsibility by tradition, Chief Justice Rehnquist laid out the facts of the case and lower court rulings on it: Two Native Americans had been fired from their jobs at a private drug rehabilitation center after ingesting peyote, a cactus that contains the hallucinogen mescaline, as part of an ancient Indian religious ceremony. The men were denied unemployment compensation by the state of Oregon because officials said they were fired for illegal conduct. State drug law prohibited use of peyote.

The men were never charged with a crime, and they sued the state, contending that denial of unemployment compensation violated their right to religious freedom. The Oregon Supreme Court sided with them, ruling that the anti-drug statute should not outlaw religious use of peyote. The state appealed to the Supreme Court.

When the case first arrived here in 1987, Rehnquist voted to hear it. Next in seniority and entitled to the second vote was William J. Brennan Jr., who apparently was concerned that the high court might overturn the Oregon Supreme Court ruling and voted "no."

Next came Byron R. White, who voted "yes," the second of four votes needed to accept. Marshall voted "no." Harry A. Blackmun said he would vote "yes" if three other solid votes were committed to hearing it. This vote to "join-3," as it is called, means that a justice is ambivalent but willing to vote "yes" if three colleagues want the case. Lewis F. Powell Jr., John Paul Stevens and Sandra Day O'Connor voted "no."

Then it was time for the last and then-newest justice. Antonin Scalia voted to take the case, ensuring that with Blackmun's "join-3" vote, the state's appeal of an order that it must pay the men unemployment compensation would be reviewed.

The case eventually would result in a decision against the men. The justices overturned the state supreme court decision saying there is no violation of the First Amendment right of free exercise when a general state law incidentally infringes on religious practices.

The majority opinion, written by Scalia, upset religious groups across the spectrum and prompted Congress in 1993 to pass legislation to reverse the ruling's legal effects and enhance protection for minority religious practices. That effort marked one of the rare times that Congress successfully negated the effects of a court ruling by saying laws infringing on religious practices must meet a very strict "compelling interest" test. A few years earlier, Congress had failed to outlaw flag burning, which the Supreme Court had ruled was a form of free speech protected by the First Amendment. When Congress first responded, in 1989, by passing a law prohibiting flag desecration, the court ruled it unconstitutional. Then when Congress tried in 1990 to amend the Constitution, the effort never garnered the necessary two-thirds vote in the House and Senate.

© Copyright 1999 The Washington Post Company

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