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“STORM CENTER”:

THE SUPREME COURT

POWERS AND PROCESSES OF THE SUPREME COURT



“STORM CENTER”: THE SUPREME COURT

This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University. In this episode, we’ll discuss the work of the United States Supreme Court.

The Honorable, the Chief Justice and the associate justices of the Supreme Court of the United States. Oyez, oyez, oyez, all persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention for the Court is now sitting. God save the United States and this Honorable Court.

It was a very hot day, July 15, 1986, another humid summer in the nation’s capital. At the nucleus of the city, the capitol building itself where legislation is made. And across the street, the Supreme Court of the United States, the highest court in the land. For the day that we’re talking about, the most overwhelming aspect of the structure completed in 1935, was the marble, white marble. It is sometimes referred to as “The Marble Palace.” That white marble reflected the sun, and it caused the two men sitting on the west side of the building to sweat profusely.

One of the men was a 35-year-old University of Virginia political science professor who had just finished his first book about the Supreme Court. His name: David O’Brien. The somewhat unusual name of his book, Storm Center.

The Court is not merely an institution of law but is a political institution. Political institution in two senses, both the Court as an institution is the center of political controversies, issues like abortion. Given the litigiousness of our society, given the fact that we have a written constitution, political issues, as Tocqueville noted, tend to be translated into judicial issues and to reach the Supreme Court. The Court as a storm center comes from Oliver Wendell Holmes, who said that we're all quiet here, but it's the quiet of a storm center. What that does not convey is that within the Court, internally, there is a dynamic, a political dynamic in which justices compete for power, compete for influence over the final decisions, and so there is a storm center in the sense in which the court is the center of a great deal of public attention of political controversy, that is mirrored, interestingly enough, within the court and in terms of its internal operations.

The man interviewing Professor O’Brien that day was Brian Lamb. He was the founder of a small television network that had, for the previous 7 years, concentrated exclusively on Congress.

When C-SPAN started, we had very little money, very few people on staff and access to the House of Representatives, and that was it. And no cameras. And as time went by, it made sense, if we were going to be a network of record of the political system, of the government in action, that an institution as important, equally important, as the Supreme Court ought to get some coverage, we ought to try to educate, frankly, myself. I knew very little about the Supreme Court, and therefore, hopefully, the average person out there in America that might not know much about the Court. And that's how it all started.

So what are some of the things Brian Lamb learned that day from Professor O’Brien? What is the genesis for our Supreme Court in this country?

Article III of the Constitution discusses the Court’s jurisdiction—the types of cases and controversies that make it to the highest court in the land. Here’s Jeffrey Rosen of the National Constitution Center:

The justices can basically decide to hear or reject any cases they want. There's a very small category of cases defined by the Constitution as part of the Court’s original jurisdiction, which they have to hear whether they want to or not. It includes disputes between two states or disputes arising from controversies on the high seas. But it's not most cases. Generally, they can take them or not. The most, the general principle they use, they will hear a case if there's a disagreement among the lower courts. If one federal court, say in California, says “X” and another federal court, say in Chicago, says “Y,” the Court believes it's their job to come up with a national rule so that everyone knows what the law is.

Justice Clarence Thomas puts it this way:

Most people think they have a right to come to the Court. For the most part, you don't, not this Court. Maybe the Court of Appeals you normally do, maybe the State Courts of Appeal, and final, the courts that don't have discretionary jurisdiction, the courts of last resort. Maybe they have a right to go to those. But here, most of our jurisdiction is discretionary. In other words, we decide if you come.

The Founders left it to Congress to determine much of the structure and jurisdiction of the courts. That includes the number of justices, which has fluctuated over the years. Since 1869, the Supreme Court has had 9 justices, 8 associate justices and a chief justice. They are appointed by the President of the United States and confirmed by the Senate. While they can be removed from office, members of the Court have, essentially, life tenure. In recent years, the confirmation process has shown that all is not quiet in what Professor O’Brien characterized as the “storm center.” Beginning with the 1987 confirmation hearing of Judge Robert Bork, some of those confirmation hearings have been quite controversial. Like the 2018 hearings of Brett Kavanaugh:

(Vocal Disruption at Kavanaugh Hearing)

Or flash back to 2016 when the Republican-led Senate decided not to hold hearings for President Obama’s choice of Judge Merrick Garland. Senate Republicans wanted to wait until after the November 2016 elections before holding confirmation hearings. Here’s Senator Chuck Grassley on the Senate floor:

We have a unique opportunity for American people to have a voice in the direction of the Supreme Court. The American people should be afforded the opportunity to weigh in on this very important matter. Our side, meaning the Republican side, believes very strongly that the people deserve to be heard, and they should be allowed to decide through their vote for the next president the type of person that should be on the Supreme Court.

The Republicans won that election, and the new president Donald Trump nominated a more conservative judge to the high court, Neil Gorsuch.

Most of the cases which reach the U.S. Supreme Court do so as petitions of certiorari. Very few cert petitions, as they are called, are granted in any given term. In order to facilitate its work determining what cases to decide, the Court has developed certiorari as a gatekeeping mechanism. If four of the justices want to hear a case, a process called “granting cert,” the parties to a case then submit written arguments to the Court. These are called briefs. These arguments can be supplemented by amicus, or “friend of the Court,” briefs. For example, a person or organization could submit a brief for or against a case they’re interested in. The next step is oral argument, where each side is usually given 30 minutes to present their case directly to the Supreme Court Justices. And most interestingly, the justices are able to question the lawyers. Here’s Chief Justice John Roberts:

Each of the justices has their own unique style about questioning. We have some people who like, you know, the rapid-fire style, others who like to spin out long hypotheticals.

For the lawyer, it can be a daunting experience. Just ask attorney Maureen Mahoney.

It's all about just fielding those questions and using the time strategically so that you respond to the questions. It's essential to answer the questions, you can't persuade a justice if you don't answer what they have asked. They’re very demanding, as they should be, that's, that's their job. It's a very challenging exercise.

Here’s an example of Justice Scalia sparring with Mahoney in 2010.

SCALIA: Is 2% a critical mass, Miss Mahoney?

MAHONEY: I don't think so, Your Honor.

SCALIA: Ok, 4%?

MAHONEY: No, Your Honor. What-

SCALIA: You have to pick some number, don’t you?

MAHONEY: Well, actually-what the…

SCALIA: Like 8. Is 8%?

Mahoney: Your Honor, the…

SCALIA: Now, does it stop being a quota because it's somewhere between 8 and 12, but it is a quota if it's 10?

So the next obvious question is the one C-SPAN’s Brian Lamb asked Justice Scalia in a 2008 interview.

LAMB: Have you ever changed your mind because of an oral argument?

SCALIA: Yes, I would say, but very rarely. Now, what I have done frequently, not at all rarely, is made up my mind during oral argument. It doesn't change your mind that often, but there are a lot of cases in which the appellate judge goes in on the knife's edge. They're very close cases.

Following oral argument, the justices meet in Conference to discuss the cases they have heard. The Chief Justice presides at the Conference. But, as Justice Stephen Breyer notes, the Chief is really “First among equals.”

Now one of the best rules—and I think it's true for any group—the rule of that Conference is no one speaks twice until everyone has spoken once. Because I was most junior, so it helped me. But I think it's a very good rule. It produces a very good feeling because everyone feels that he's been heard. And the other rule which is absolute, is what I'd call it, “Tomorrow is another day.” You and I were the greatest allies in the world on this case. We thought we are 100% right and those who disagree with us are completely wrong, and we are going to convince. So we are complete allies. Now the case is over. The next case we’re on totally opposite sides. The fact that you were my ally in “Case One” has nothing to do with how I will decide or you will decide “Case Two.” There is no linkage as there is sometimes in a political system.

Following a preliminary vote in the conference, the Chief Justice, if he is in the majority, assigns the writing of the majority opinion. If the Chief Justice is not in the majority, the task of assigning who writes the opinion falls to the senior associate justice in the majority. Votes taken at Conference are tentative. They can change as the justices go back and forth in the next stage of the process, opinion writing. Here’s former Justice Sandra Day O’Connor:

Once the person assigned to write for the majority opinion circulates an opinion draft, then the other eight have a chance to weigh in, and normally they start acting within a day or two. They'll read it and say, “Dear Sandra, I joined,” or “Dear Sandra, I'll wait for the dissent,” or “Dear Sandra, I want to give a little more thought to this before I act,” or “Dear Sandra, if you will change A, B, C and D, to E, F, G and H, I would be able to join.” I mean, it's something like that, that happens.

Justices are aided by their clerks. These are normally young law school graduates whose time at the high court is seen as a huge advantage to their future careers. Though their duties vary during their one year as clerks, they usually assist their justice with two important functions: First, helping justices decide which cases are “cert-worthy,” meaning they should be heard by the Court. And the second is the process of helping justices to write opinions. That’s explained by Ivan Fong who clerked for Justice O’Connor in 1989:

It really varied with the case. It was a collaborative effort. Usually the clerk would go back and do research, and, you know, right up something rough and kind of drafts would go back and forth until she was happy with it, and the other clerks would also get involved. We would circulate the drafts among the other three clerks to get their input as well.

20 years after his clerkship, Ivan Fong would become General Counsel in the U.S. Department of Homeland Security.

The drafting of opinions continues until everyone in the majority agrees to the final decision and language. The Court’s decision, as well as possible dissents, are announced from the bench with no advance notice to the public or the press.

You can watch Congress on television. You can see many of the actions of the president on television. You cannot, however, see Supreme Court oral arguments or the release of final decisions on television. The Court has banned this process, though, over the years, Congress has considered various proposals and heard testimony on the issue. C-SPAN founder Brian Lamb testified in a 2005 hearing:

But I often thought it was odd because they would allow a member of the print press to come in and sit in the press area. A television reporter sit in the press area, walk outside, stand in front of a camera, and interpret everything that went on the courtroom, but giving us a chance to see how it really happened seems to be something that they can't agree to.

In a 2007 congressional hearing, Justice Kennedy made his opinion very clear:

Please, Senator, don't introduce into the dynamics that I have with my colleagues the temptation, the insidious temptation, to think that one of my colleagues is trying to get a sound bite for the television. We don't want that. Please don't introduce this into our intercollegial deliberations. We don't want it.

And Justice Scalia, in a 2012 interview with Brian Lamb, voiced his opposition to television cameras in the Supreme Court:

LAMB: Why are you so against it?

SCALIA: Brian, I was for it when I first joined the Court and switched and remain on that side of it. I am against it, because I do not believe, as the proponents of television in the Court assert, that the purpose of televising our hearings would be to educate the American people. That's not what it would end up doing. If I really thought it would educate the American people, I would be all for it. If the American people sat down and watched our proceedings gavel-to-gavel, they would never again ask, as I'm sometimes asked, “Yeah, Judge Scalia, why do you have to be a lawyer to be on the Supreme Court? The Constitution doesn't say.” No, The Constitution doesn't say so, but if you know what our real business is, if you know that we're not usually contemplating our navels, should there be a right to this or that? Should there be a right to abortion? Should there be a right the homosex-? That's not usually what we're doing. We're usually dealing with the Internal Revenue Code, with ERISA, with patent law, with all sorts of dull stuff that only a lawyer could understand and perhaps get interested in. If the American people saw all of that, they would be educated, but they wouldn't see all of that.

LAMB: But we get-

SCALIA: Your outfit would carry it all…

LAMB: Yeah, but we get…

SCALIA: …to be sure. But what most of the American people would see would be thirty second, fifteen second, takeouts from our argument. And those takeouts would not be characteristic of what we do. They would be uncharacteristic.

LAMB: Yeah, now but what we see is an article in a newspaper that's out of context with what you say is…

SCALIA: That’s fine. But it’s, people read that and they say, “Well, it's an article in the newspaper, and the guy may be lying, or he may be misinformed,” but somehow when you see it live, an excerpt pulled out of an entire, when you see it live, it has a much greater impact.

Today, audio of the Supreme Court oral arguments is available. But no video. Again, C-SPAN founder Brian Lamb.

Since that day on the Supreme Court Plaza with David O Brien, we've come a long way. We haven't gone far enough, because the objective is to let the public see the 75 or 80 oral arguments before the Court on television. And the Court at the moment is dead set against the idea, and they have been ever since we started talking about it. But today, you can listen to the Court proceedings, and we have on C-SPAN, put their photographs on there and let you listen to the arguments and then do some background information on what the arguments are all about, and that is more than the publics ever had.

David O’Brien would remain at the University of Virginia for his entire career. He died at age 67 of lung cancer. In his last interview on C-SPAN in 2005, Lamb and O’Brien reminisced:

LAMB: You and I sat in front of the Supreme Court almost 20 years ago, and for two and a half hours on a very hot July day, I asked you the “Supreme Court 101” questions. What do you find, when your students at the University of Virginia come into to class, what are their misperceptions of the Court?

O’BRIEN: Well, I think one misperception is that, that the Court houses nine platonic guardians and that the law is very clear. In fact, of course, the law is unclear, particularly constitutional law. It's highly contentious, highly debatable. As a consequence, I don't want to cast, as they say “asparagus” at the Senate, but the Supreme Court really is the most deliberative body in our institution in which politics— while politics enter into judicial decision making through the judicial philosophies that a particular justice have— you really have an intellectual struggle that takes place over opinion writing and a premium placed upon providing persuasive arguments and justifications for each justices’ position.

Further information on some of the issues discussed in this program, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.

PODCAST GOAL

To acquaint the student with the work of the U.S. Supreme Court.

QUESTIONS TO PONDER

  1. In Federalist No. 78, Alexander Hamilton wrote, “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” What do contemporary authors say about Hamilton’s claim that the judicial branch of government “will always be the least dangerous”? Do they tend to agree with Hamilton? This link https://avalon.law.yale.edu/18th_century/fed78.asp will take you to Federalist No.78. The site is hosted as part of the Avalon Project at Yale Law School.
  1. The following language can be found in Article III of the Constitution, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” While they can be impeached, this language essentially means that members of the U.S. Supreme Court serve for life. Do you think this is a good thing?
  1. What, if anything, surprised you about the work of the Court? In addition to listening to the podcast you should also visit the “Additional Materials” section. See, in particular, the program The Supreme Court: Home to America’s Highest Court, 2010 Edition.

OUR SOURCES

About the Supreme Court. (n.d.). Supreme Court of the United States. https://www.supremecourt.gov/about/about.aspx

About the Supreme Court. (n.d.). United States Courts. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

Certiorari. (n.d.). Legal Information Institute. https://www.law.cornell.edu/wex/certiorari

Fiorina, M.P., Peterson, P. E., Johnson, B., & Mayer, W. G. (2011). America’s new democracy (6th ed., pp. 328-357). New York City, NY: Pearson.

Fiorina, M. P., Peterson P. E., Johnson, B., & Mayer, W. G. (2011). The new American democracy (7th ed., pp. 429-460), New York City, NY: Pearson.

The Judicial Branch. (n.d.). The White House: President Barack Obama. https://obamawhitehouse.archives.gov/1600/judicial-branch

Lowi, T. J., Ginsberg, B, Shepsle, K. A., & Ansolabehere, S. (2019). American government: A brief introduction (15th ed., pp. 224-226, 231-232, 234-245, 248). New York, NY: W.W. Norton & Company.

O'Brien, D. M. (2014). Constitutional law and politics: Struggles for power and governmental authority (10th ed., Vol. 1, pp. 195-198). New York, NY: W.W. Norton & Company.

O'Brien, D. M. (2017). Storm center: The Supreme Court in American politics (11th ed., p. 414). New York, NY: W. W. Norton.

Petitioning and Opposing Certiorari in the U.S. Supreme Court. (2016, April 27). FindLaw. https://corporate.findlaw.com/litigation-disputes/petitioning-and-opposing-certiorari-in-the-u-s-supreme-court.html

The Supreme Court Historical Society. (n.d.). https://supremecourthistory.org/index.html

Supreme Court Procedures. (n.d.). United States Courts. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1

U.S. Supreme Court Research Guide: Overview. (2019, May 06). Michigan Law: Law Library University of Michigan. https://libguides.law.umich.edu/scotus

UNITED STATES SUPREME COURT CASES

United States v. Nixon (1974) --https://www.oyez.org/cases/1973/73-1766. On this page, you can find links to oral argument, Chief Justice Burger’s decision announcement, and the Court’s opinion. The page also includes a summary of the facts, the legal question, and a summary of the Court’s decision.

ADDITIONAL CLIPS AND PROGRAMS FROM THE C-SPAN ARCHIVES