While oral argument provides the citizenry with a fascinating glimpse of the Supreme Court justices at work, the heavy lifting is undertaken behind the scenes, far removed from public view, beginning with the High Tribunal’s private, indeed, highly secretive weekly conferences in which decisions are made that will affect American lives and the life of the nation.
The justices meet twice each week to conduct the Court’s business. This includes consideration of petitions seeking review of lower court decisions and deliberations on cases before the Court. A buzzer sounds in each of the justice’s chambers five minutes before the conference begins.
The Wednesday conferences, which convene in the afternoon, focus on the four cases heard during oral argument on Monday. A Friday conference, typically held at 9:30 a.m., is devoted to the eight cases heard on Tuesday and Wednesday, although the schedule has varied throughout the years.
Conference discussions are secret. Only the justices attend. There are no law clerks or secretaries or staff in the room. If the Court’s Marshal, who guards the door during the conference, knocks on the door, perhaps to deliver a note to a member of the Court, the junior-most justice answers and delivers the message. Coffee, in a silver urn, is available.
When the justices gather in the conference room, located next to the chambers of the chief justice, they greet each other with a handshake, a tradition initiated in 1888 by Chief Justice Melvin Fuller. The justices are seated, each in a high-backed chair bearing a nameplate, at the large rectangular mahogany table, by seniority. The chief justice sits at the south end, and the senior associate justice at the north end. Three of the justices sit on one side of the table, four on the other. A portrait of Chief Justice John Marshall, hanging on the wall above the fireplace, oversees the conference.
Secrecy is vital to the work of the conference. Justice Lewis Powell spoke for his predecessors and successors, “The integrity of decision making would be impaired seriously if we had to reach our judgements in the atmosphere of an ongoing town meeting.
There must be candid discussion, a willingness to consider arguments advanced by other Justices, and a continuing examination and reexamination of one’s own views.” Complete candor among the justices as the principal rationale for secrecy is bolstered, as Justice Louis Brandeis stated, by the fact that “we do our own work.” The justices, although aided by their law clerks in consideration of cases and legal issues, must come to the conference fully prepared to participate in the discussions, if they are to be meaningful individually and collectively.
Given the secrecy surrounding the work of the conference, what we know about it is derived from an occasional revelation in a justice’s opinion, an off-the-bench remark and, when available, the private papers of the justices. Justice Harold Burton’s notes on conference discussions in the landmark case of Brown v. Board of Education, in which the Court, in 1954, declared segregation in public schools unconstitutional, disclosed the invaluable leadership of Chief Justice Earl Warren’s decision to hold conferences for the justices to “confer,” rather than to “vote,” as a means of inviting prolonged discussion and exploration of views as a path to forging consensus and, ultimately, unanimity.
Justice Robert H. Jackson observed of Justice Hugo Black that “you can’t just disagree with him. You must go to war with him if you disagree.” Although the justices are not disposed to threats of violence, Justice Douglas recalled a time when Chief Justice Fred Vinson was sufficiently provoked during a heated discussion that he rose from his seat at the table and shouted at Frankfurter, “No son-of-a bitch can ever say that to Fred Vinson.”
We have learned that Justice James McReynolds, the leading candidate for the most disagreeable justice in the Court’s history, was notoriously anti-Semitic. Whenever Justice Brandeis, the first Jewish justice spoke, McReynolds would leave the room, while keeping the door slightly ajar so he could return when Brandeis finished his remarks. McReynolds often refused to participate in Court photos, writing Chief Justice Taft, “you know I am not to be found when a Hebrew is aboard.”
Justice Felix Frankfurter, papers demonstrate, was unable to shed habits from his prior position as a Harvard law professor, as he proceeded to stand and “lecture” in a condescending manner his fellow justices on finer points of constitutional law, ignoring perhaps that the other justices, too, had achieved some measure of learning. Frankfurter liked to dominate conference discussions, which irritated his colleagues. Justice William Brennan recalled on one occasion, while Frankfurter was holding forth, that Douglas rose from his seat and approached the chief justice, saying, “When Felix finishes, Chief, I’ll be back,” and he left the conference.
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David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.
