The Unpublished Opinions of the Rehnquist Court

Overview

In the last twenty years, the veil of secrecy surrounding the workings of the United States Supreme Court has been lifted. Justice Thurgood Marshall's controversial decision to make his papers available to the public ushered in a new era of openness about the operation of the Court—but not without criticism from Chief Justice William H. Rehnquist.

The Unpublished Opinions of the Rehnquist Court provides a behind-the- scenes look at the Supreme Court, showing how changes between ...

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Overview

In the last twenty years, the veil of secrecy surrounding the workings of the United States Supreme Court has been lifted. Justice Thurgood Marshall's controversial decision to make his papers available to the public ushered in a new era of openness about the operation of the Court—but not without criticism from Chief Justice William H. Rehnquist.

The Unpublished Opinions of the Rehnquist Court provides a behind-the- scenes look at the Supreme Court, showing how changes between the drafts and the Justices' final opinions have created substantial differences in the outcome of the Court's decisions. As with his two previous works The Unpublished Opinions of the Warren Court and the Unpublished Opinions of the Burger Court, author Bernard Schwartz uses private court papers to follow these decisions and explore the key role and responsibility of the Chief Justice.

Among the ten cases examined by Schwartz are key abortion cases Hodgson v. Minnesota and Webster v. Reproductive Health Services— the original draft of which would have virtually overruled Roe v. Wade—as well as a civil rights case, Patterson v. McLean Credit Union. Schwartz considers the draft opinions and explains why the drafts were not issued as the final opinions and dissents in these cases. In particular, he shows what would have happened if the draft opinions had come down as the final opinions.

The Unpublished Opinions of the Rehnquist Court serves to clarify and explore the actual operation of the judicial decision-making process. It will be fascinating and informative reading for attorneys, judges, law students, politicians and anyone interested in the mechanics of the nation's highest Court.

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Editorial Reviews

Judith A. Baer
Until recently, students of the Supreme Court who preferred reading personal papers to counting official votes were at a distinct disadvantage. The aura of secrecy and confidentiality surrounding the Court led most justices to restrict access to their papers until they and their colleagues had been dead for several years, if, indeed, the materials were not destroyed outright. The result was a considerable time lag. David Danelski's 1960 article about the role of the chief justice stopped with Harlan Fiske Stone, while Walter Murphy's study of judicial strategy directly quoted no one whose tenure outlasted that of the recently retired Felix Frankfurter. But the last twenty years have seen a trend toward acceptance of William Brennan's belief that the claims of history are more important than those of judicial secrecy" (p. 4.) Brennan's generosity in granting access to his papers, along with the decisions of William Douglas and Thurgood Marshall to open their papers to researchers after their deaths, have gone a long way toward reducing the lag. Bernard Schwartz, who agrees with Brennan about the relative claims of history and secrecy, is one of many scholars who have benefited or will benefit from this new openness. We, his readers, can also learn much from this book. The present volume is a successor to Schwartz's collections of unpublished opinions from the Warren and Burger Courts. Drawing mainly on the Marshall papers in the Library of Congress, this book takes us through the 1990-91 term, thus excluding only the three newest justices (which is too bad, considering that these include the first Democratic appointees since Marshall.) "The reader may conclude," Schwartz writes, "that the Court does not work at all in the cold, purely logical way that most people think it does" (p. 26.) I doubt that "most people" who think about the Court at all hold that opinion about how it works; Justice Holmes declared long ago that the life of the law was not logic but experience. But the reader should resist the tendency to be put off by this straw person erected in the introduction. This skillfully edited volume does put to rest a genuine unresolved controversy about appellate court decision making, a dispute which had a significant impact on the fate of what would have been a significant change in the federal court system. The proposed "National Court of Appeals," which would have screened certiorari petitions for the Supreme Court, was more or less talked to death in the 1970s, but not before it sparked considerable discussion about the degree and kind of collegial deliberation which went on in the Supreme Court. Several commentators who wanted the Court to retain control over its own review process believed that the justices conscientiously read and listened to one another's opinions. Some supporters of the proposal thought that separating decisions on cert from decisions on the merits would give the justices more time for collective thought; some opponents suspected that however much time the justices had, they made up their minds independently. THE UNPUBLISHED OPINIONS OF THE REHNQUIST COURT leaves no room for doubt that the believers in collective thought are right. Conference votes are not chiseled in marble; they are subject to change after the justices read their colleagues' draft opinions. And read them they do, thoroughly and carefully. They write thoughtful (in both senses of the word) memos about these opinions. All this, of course, confirms what earlier studies reported. What Schwartz's collection makes clear is that changes in outcome between conference vote and final decision are far from unusual. Equally impressive are the justices' conscientious (though not always successful) efforts to reach decisions by consensus rather than simple majority. The ten cases presented here suggest, though they are too few to prove, that some justices have more collegial impact than others; Sandra Day O'Connor and Anthony Kennedy are frequent players, for instance, while Antonin Scalia is not. But the most striking pattern is the absence of pattern; collegial consultation does not consistently move the Court to the right, to the center, or toward either activism or restraint. Schwartz includes an important case in which collective thought moved the Court from centrist discretion rightward to valor or brashness, depending on the beholder's eye. In PATTERSON V. MCLEAN CREDIT UNION (1989), a Brennan majority opinion upholding employees' rights to sue for race discrimination on the job became a Kennedy opinion limiting them. But WEBSTER V. REPRODUCTIVE HEALTH SERVICES, decided the same year, brought the opposite result; the retreat from Rehnquist's initially successful effort to get a majority to overrule ROE V. WADE has proved permanent. HODGSON V. MINNESOTA (1990) upheld a parental-notification-with-judicial-bypass restriction on minors' abortion rights. However, its invalidation of a two-parent notification rule, containing "O'Connor's first vote to strike down an abortion restriction, has proved the Thermidor for the would-be Rehnquist 'revolution' (to use the term in Justice Blackmun's draft WEBSTER dissent) in abortion law" (p. 401.) Schwartz's choice of metaphors is startling--some of us may think of REHNQUIST as the Thermidor for the WARREN revolution--but the observation is apt. Collegial deliberation in criminal procedure cases has also checked the reformist impulse, temporarily at least. MISSOURI V. BLAIR (1987), for example, transmogrified from an "important Fourth Amendment case" into "not even a footnote in recent Supreme Court jurisprudence" (p. 64.) A two-step process turned a five to four conference vote to allow police to use strategic arrests for minor offenses to investigate major crimes into a "DIG" (dismissing the writ of certiorari as improvidently granted.) Lewis Powell's draft dissent convinced O'Connor to change her vote; the new majority to uphold the lower court yielded to a compromise suggested by Harry Blackmun. CALIFORNIA V. ROONEY (1987) derailed a determination that garbage was subject to police search, but the ephemeral majority regrouped a year later in CALIFORNIA V. GREENWOOD. This section of the book includes an anecdote (on pp. 133-34) which reveals as much about the Court's decision-making as any draft or final opinion Schwartz includes. The spring that ROONEY was being decided, the Court allowed a television crew to film the conference room. A news reporter was observed rummaging through the (unlit) fireplace; this discovery provoked an exchange of memos. Rehnquist's indignation about "a rather gross breach of courtesy if not of ethics" was not unanimously shared. Several justices likened this situation to the ROONEY case; Blackmun suggested they had been "a little careless." Schwartz, like Blackmun, finds that he "cannot get too disturbed." "If the defendants had intended the seized materials to remain confidential," he asks, "why did the leave them in trash cans or garbage bins that were accessible to the public?" (p. 134). This vision of a nation of snoops (or, perhaps, scavengers) leaves the reader uncertain whether to laugh or cry. One thinks of old tort cases where everyday work procedures were labeled negligent or reckless. The eagerness to shift responsibility from investigator to investigatee, from institution to individual, is typical of the conservative mindset; this insight into judicial and professorial outlooks reminds us of the ideological distance traveled in the last generation. REFERENCES Danelski, David J. "The Influence of the Chief Justice in the Decisional Process of the Supreme Court." Walter F. Murphy and C. Herman Pritchett, eds. COURTS, JUDGES, AND POLITICS. 4th ed. New York: Random House, 1986, pp. 568-77. Murphy, Walter F. ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press, 1964. CASES CITED CALIFORNIA V. ROONEY. 483 U.S. 307 (1987.) CALIFORNIA V. GREENWOOD. 486 U.S. 35 (1988.) HODGSON V. MINNESOTA. 497 U.S. 417 (1990.) MISSOURI V. BLAIR. 480 U.S. 698 (1987.) PATTERSON V. MCLEAN CREDIT UNION. 491 U.S. 164 (1989.) WEBSTER V. REPRODUCTIVE HEALTH SERVICES. 492 U.S. 90 (1989.)
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Product Details

  • ISBN-13: 9780195093322
  • Publisher: Oxford University Press, USA
  • Publication date: 6/28/1997
  • Edition description: Hardcover Edition
  • Pages: 512
  • Product dimensions: 6.50 (w) x 9.50 (h) x 1.54 (d)

Meet the Author

Bernard Schwartz is Professor of Law at the University of Tulsa and Professor Emeritus, New York University.

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Table of Contents

Introduction 3
1 Missouri v. Blair (1987): Traffic Arrests and Homicide Evidence 30
2 Hodel v. Irving (1987): Regulation, Takings, and Just Compensation 65
3 California v. Rooney (1987): Garbage In, Evidence Out? 105
4 Tompkins v. Texas (1989): Race and Peremptory Challenges 135
5 Patterson v. McLean Credit Union (1989): Civil Rights in the Rehnquist Court 197
6 Webster v. Reproductive Health Services (1989): Roe and the Swinging Pendulum 260
7 Hodgson v. Minnesota (1990): Roe Reaffirmed 339
8 General Motors Corporation v. United States (1990): Administrative Deadlines - Mandatory or Directory? 402
9 United States v. France (1991): Magistrates' Powers and Delayed Decisions 423
10 Ford Motor Credit Co. v. Department of Revenue (1991): A Tax Case Switch 462
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