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How the Supreme Court Really Works

After 30 years covering the Court for The New York Times, Linda Greenhouse takes us behind the scenes for a look at how nine Justices determine the law of the land



By the time the nine Supreme Court Justices emerged from behind a red-velvet curtain to hear the day's argument one morning last March, all 400 seats in the courtroom were filled. Some people had waited in line all night for a chance to witness history.

The question before the Justices was a momentous one: Does "the right of the people to keep and bear arms" in the Constitution's Second Amendment give individuals the right to have a loaded gun at home for self-defense? Despite years of national debate over gun control, the Supreme Court had never before in the 217 years since the adoption of the Bill of Rights addressed this critical question directly.

Outside the Court's majestic building across from the Capitol, people chanted and held up signs for the TV cameras. But in the courtroom, all was calm as the black-robed Justices, eight men and one woman, questioned the lawyers presenting the case.

"What is reasonable about a total ban on [gun] possession?" asked Chief Justice John G. Roberts Jr. "What about a requirement that you obtain a license to have a handgun?" asked Justice Ruth Bader Ginsburg. And so on, until each Justice with a question had a chance to probe the various arguments. And then it was over. "The case is submitted," Roberts declared. The Justices disappeared behind the curtain, and the audience filed quietly out.

Most of those people, I suspect, had only a vague idea of what would happen next. During the nearly 30 years that I covered the Supreme Court for The New York Times, I came to understand the Court's obscure practices—the details that don't make their way into textbooks—and I got to know the Justices themselves.

Swing Votes

Of those on the Court when I arrived in 1978, only Justice John Paul Stevens remains, still vigorous and playing tennis at 88. I covered the arrival of the first female Justice, Sandra Day O'Connor, in 1981, and her retirement 25 years later.

It's hard today to grasp the impact it had when President Ronald Reagan named a woman to the highest court at a time when few women were judges, or even partners in major law firms. In addition to being a groundbreaker, O'Connor played a pivotal role as the "swing vote" that decided many important cases. (Since her retirement in 2006, Justice Anthony M. Kennedy seems to have assumed that role.)

Justices typically come to the Court in middle age, and do not shed their personalities at the courthouse door. The late Chief Justice William H. Rehnquist, for example, kept up his weekly poker game and loved to bet on everything from the outcome of an election to the depth of an overnight snowfall on the Court's steps. Ginsburg, the Court's second and currently the only female member, can look severe in photos, but she actually loves fashion and has appeared on several "best-dressed" lists.

In some ways, the Justices are regular folks. Except for the Chief Justice, who receives a car and driver, they drive themselves to work. Their salaries ($208,100 and $217,400 for the Chief Justice) are no higher than those of young lawyers at major big-city law firms. When they're not on the bench, the robes come off and they wear standard business attire.

No Media Glare

The Supreme Court has been largely shielded from the media glare that the other two branches of government have become used to. TV cameras and recording devices are not allowed in the courtroom. In fact, after the grueling interrogations that Justices must endure as part of the Senate confirmation process (after being nominated by the President), they don't have to answer to anyone: They're appointed for life, and can't be hauled before Congress to testify. They don't have to answer reporters' questions, and can decide if and when to speak in public—most often at legal conferences or schools.

The lack of TV coverage lets the Justices retain a degree of privacy almost unthinkable for such powerful people. Few people recognize them. I once saw a tourist hand a camera to Justice Byron R. White outside the Court's public cafeteria, and, having no idea that the tall gray-haired man was one of the nine Justices, ask him to take his family's picture. White, who retired in 1993, wordlessly complied.

But while the Court may seem like it's shrouded in secrecy, I would argue that it's actually the most transparent of the three branches of government: Everything the Court does is on the record. Opinions are signed. During oral arguments, the Justices ask questions without staffers passing them notes, as often happens in congressional hearings. Transcripts of oral arguments are posted online. In Congress, entire agendas can disappear without a trace. That doesn't happen at the Court.

Still, I think televising oral arguments would be a good idea since it would let the public share in the drama—though they'd still have lots of questions about how the Court does the rest of its work.

80 Out of 8,000

The process actually starts months before the oral arguments, with the selection of cases the Court will hear. Each year, of the 8,000 appeals submitted, the Justices agree to hear about one percent. Their law clerks do much of the sorting to find the 80 or so cases deemed worthy of the Court's attention—usually because there's a constitutional issue at stake or because lower courts have issued conflicting opinions.

Each Justice has four law clerks, usually top law-school graduates in their mid-20s, who stay for a year before moving on. (Three of the current Justices—Roberts, Stevens, and Stephen G. Breyer—were Supreme Court clerks.) Justices usually form close relationships with their clerks.

When I started covering the Court, I thought of it as a lively debating society, with Justices popping into one another's offices to bat around the great legal issues of the day. It's not. Once or twice a week, the Justices do meet as a group, but that's often the extent of their face-to-face interaction.

Most of their communication with one another is in writing, simply because writing is much more precise than chatting. Almost every opinion is filled with nuance, and the smallest details matter. Before they sign their names to an opinion, Justices have to be satisfied that it really expresses their views—and no opinion without five signatures speaks for the Court.

Within a day or two of oral arguments, the Justices meet for a straw vote. Then the Chief Justice (if he's in the majority) assigns himself or another member of the majority to draft an opinion. If the Chief Justice is in dissent, the senior Justice in the majority makes the assignment.

After the Election...

From there, opinions can go through multiple drafts in order to hold the original majority. Justices don't engage in vote-trading the way politicians do—there's no "I'll support your favorite project if you'll support mine"—but they are often willing to make changes to accommodate the views of wavering allies and keep them on their side. Sometimes this results in an opinion that is narrower than expected.

The Court's decision in the Second Amendment case was handed down in June. The vote was 5 to 4 in favor of an individual right to own a gun. Chief Justice Roberts assigned Justice Antonin Scalia to write the majority opinion.

This year, the Court convenes in the shadow of a presidential election that could shape its future. With five of the nine Justices 70 or older, John McCain or Barack Obama could end up appointing several Justices. But no matter who's making the appointments, it can be hard to predict how any Justice will vote over the long term. I learned many things during my 30 years at the Supreme Court—including the folly of trying to predict the Court's future.


SUPREME COURT TIMELINE

1803
Marbury v. Madison
The Court firmly establishes its authority by declaring, for the first time, that a law passed by Congress is unconstitutional-—a power not explicitly granted in the Constitution.

1857
Dred Scott v. Sandford
Dred Scott, a slave who lived with his master in a free state, Illinois, before moving back to Missouri, a slave state, appeals to the Court for his freedom. The Court rules that since blacks are not citizens, they cannot sue in federal court.

1896
Plessy v. Ferguson
In a case involving segregated railroad cars, the Court establishes the doctrine of "separate but equal," which becomes the legal basis for "Jim Crow" racial segregation laws in the South.

1935
The Building
After meeting for 135 years in the Capitol—with the Justices often working from their homes—the Court gets a home of its own, across from the Capitol.

1937
Court-Packing Plan
Frustrated by the Court's declaring many of his New Deal initiatives unconstitutional, President Roosevelt proposes expanding the Court to 15 Justices, from 9. Congress rejects the plan after months of intense debate.

1954
Brown v. Board of Education
After 58 years, the Court overturns the "separate but equal" doctrine of Plessy v. Ferguson, and bars segregation in the nation's public schools.

1967
Thurgood Marshall
The Court's first black Justice is appointed by President Lyndon B. Johnson.

1973
Roe v. Wade
In a decision that remains controversial 35 years later, the Court establishes a woman's constitutional right to an abortion.

1981
Sandra Day O'Connor
The Court's first female Justice is appointed by President Ronald Reagan.

1987
Bork Nomination
After an intense fight that now seems to be standard, the Senate rejects President Reagan's nomination of Robert Bork, a conservative judge.

2000
Bush v. Gore
With the presidential election still undecided more than a month after Election Day, the Court stops a recount of Florida's vote and effectively makes George W. Bush the winner over Al Gore.

2009
The Next President
With five of the nine Justices in their 70s or older, whoever wins the election next month could end up appointing several Justices and shaping the Court for years to come.