Behind the Velvet Curtain:
Inside the U.S. Supreme Court
Artemus Ward
Dept. of Political Science
Northern Illinois University
Prepared for:
Roosevelt University
2007 Winter Lecture Series
The Courtroom of the U.S. Supreme Court Building where the Court has sat for oral argument since 1935.
The Court is Shrouded in Secrecy
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We will discuss how a case moves through the Court
with particular attention to:
– The role of law clerks
– The strategy, negotiation, and compromise among the nine
justices at each stage of the process
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We will conclude by asking whether a Court composed of
unelected, unaccountable, elite lawyers is good for
America.
“The Nine
Old Men
(and Women)”
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Research shows that the nine justices are
generally divided along ideological lines:
– 4 Conservatives: Roberts, Scalia, Thomas, Alito
– 4 Moderate Liberals: Stevens, Souter, Ginsburg, Breyer
– 1 “Swing Vote”: moderate conservative Anthony Kennedy
Sorcerers’ Apprentices: Law Clerks
Each justice has 4 clerks,
the Chief 5, and retired
justices 1
 Recent Law School
graduates largely from:
Harvard, Yale, Chicago,
Columbia, Stanford,
Virginia, Michigan
 One-year clerking
experience on the U.S.
Courts of Appeals
 One year on the Supreme
Court.
 After clerkship they can
choose any job they want.

Stanford Law School Supreme Court Law
Clerks for the 2004-2005 Term (left to right):
•
•
•
•
Clerk
Aimee Athena Feinberg
Roberto J. Gonzalez
Kathryn Rose Haun
Joshua A. Klein
Grad Justice
'02
'03
'00
'02
Breyer
Stevens
Kennedy
O'Connor
Deciding to Decide
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Discretion - the Court
largely chooses which
cases (petitions for
write of certiorari) it
wants to consider.
Of the nearly 10,000
cases appealed to the
Supremes every year,
only 70 or so are
decided with full
written opinions after
oral argument.
How can nine justices
examine nearly 200
petitions each week?
Granting Certiorari
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Cert Pool - Cert petitions are
divided up between every law
clerk at the Court (except Justice
Stevens’ clerks who work alone).
The clerks prepare a brief memo
on each case for all the Justices
to read.
Excluding the Stevens clerks,
there are 34 clerks in the pool.
Therefore, each pool clerk
reviews and writes a memo on
roughly six cases each week.
Justice Stevens does not require
his clerks to write memos on all
of the petitions because if they
did, each of his 4 clerks would
be writing nearly 50 memos each
week!
Chicago Law School Supreme Court Law
Clerks for the 2004-2005 Term (left to right):
Clerk
Grad
Justice
• Jeff Wall
’03
Thomas
• Jay Richardson
’03
Rehnquist
• Curtis Gannon
’98
Scalia
• Jake Phillips
’03
Scalia
• Dan Powell
’03
Stevens
• Andy Baak
’03
Kennedy
•Martha Pacold
’02
Thomas
Granting
Certiorari
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In the above pool memo, the clerk notes a circuit split and recommends grant.
Cues - shortcuts that allow
clerks and justices to
determine cases “worthy”
of consideration:
U.S. government is a
party to the dispute.
Conflict among courts.
Conflicting ideology
between Supreme Court
and lower court(s).
Interest group
participation.
When 2 or more cues exist
in the same case, chances
of obtaining cert are high.
Granting
Certiorari

A Blackmun clerk marks up the pool memo to note that it is from
“Margo” Schlanger, a Ginsburg clerk who attended Yale Law School.
Some justices have their
clerks “mark up” the pool
memo with their own views
and recommendations.
Justice Blackmun was
suspicious of ideological
bias and asked his clerks to
mark up the pool memo
with the information about
the pool clerk who drafted
the memo: the clerk’s first
name, the justice they
currently clerk for, the lower
court judge they last clerked
for, and the law school
attended.
Granting
Certiorari
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Discuss List - The Chief
Justice with his clerks
makes up a list of
cases he thinks ought
to be discussed by the
full Court. The other
justices may add cases
to the “discuss list.”
Here, former C.J.
Rehnquist [WHR] lists
cases for discussion.
Cases not listed by any
justice are
automatically denied.
Granting
Certiorari
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Rule of Four – by
tradition, cert is
granted if at least 4 of
the Justices decide a
case deserves to be
reviewed.
Here, Rehnquist and
O’Connor vote that
they will “join 3”
meaning that if three
others want to hear the
case, they will also
agree to hear it.
Oral
Argument
Clerks prepare lengthy
“bench memos” for their
justices outlining the
facts, issues, and
possible questions to ask
attorneys.
 During oral argument,
justices constantly
interject with questions.
 Research shows that oral
argument matters.
Quality arguments are
more likely to win than
poor arguments.
 Justices often
foreshadow their position
on the case through
their questions and
comments.

Justice Blackmun’s oral argument notes provide a grade for each attorney. SG Wallace
gets a “6” on a 10-point scale while his opponent, a “young” “36”-year-old from “UCLA” Law School scores a “5”
Conference
Vote
In Conference the justices
meet alone to discuss the
cases they have just heard
oral argument in.
 The Chief begins by stating
the facts of the case and
stating his vote. Votes
proceed in order of seniority
with the most junior justice
speaking and voting last.
 The justices keep track of
the voting and discussion.
 Here, Justice Blackmun
notes that Justice Souter
said he was “troubled,”
“close to” the position of
“J[ohn] P[aul] S[tevens],”
and not with “N[ino] &
K[ennedy].”
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Opinion
Assignment
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Above: C.J. Rehnquist’s Assignment Sheet shows that J. Stevens assigned
one opinion to J. Ginsburg while J. Blackmun assigned one to himself and
one to J. Stevens.
A day or two after
conference, opinions
are assigned by the
Chief Justice if he was
in the majority. If he
wasn’t, the opinion is
assigned by the most
senior justice in the
majority.
Who writes the opinion
is important because if
5 or more justices
agree, the majority
opinion is the law of
the land.
Opinion Assignment Strategy
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The Chief is concerned
with distributing the
workload evenly.
Chiefs often assign
important, groundbreaking
cases to themselves.
In closely divided cases,
opinions are assigned to
justices who are on the
fringe or are unsure of
their position if their vote
will constitute a majority swing votes.
Some justices become
expert in a particular area
and get the opinion
assignment in those cases.
When Chief Justice Roberts and Justice Stevens
disagree, Stevens controls the opinion assignment.
Opinion Writing
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The justice who the opinion
is assigned to directs his/her
law clerk to write the first
draft of the opinion. When
the justice is satisfied with
the result, it is circulated to
the other justices.
At right are Justice
Blackmun’s hand-written
corrections to his clerkwritten draft of a death
penalty case where
Blackmun decided, “I no
longer shall tinker with the
machinery of death.”
Coalition Formation: The Clerk Network
Chief Justice Rehnquist with his Law Clerks. 2002.
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After the majority opinion author circulates a draft, the clerks from the other
chambers review it and if necessary suggest changes and make
recommendations to their justices.
Memos are then sent to the opinion author. The clerk who originally drafted
the opinion reviews them and makes recommendations to the justice about
what should or should not be changed and why.
Clerks mine the “clerk network” during lunch-time, in the hallways, and on
the basketball court—the highest court of the land—to find out information
for their justice on the positions of the other justices.
Coalition
Formation:
Separate
Opinions
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Justices who are only
partially satisfied with the
reasoning of the opinion,
but agree with the result
may issue their own
concurring opinions.
Justices who disagree with
the majority may write
dissenting opinions.
At left is one of J.
Blackmun’s circulation (log)
sheets. He used these to
keep track of the memos
and separate opinions
circulated in each case.
Conclusion
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Americans trust the Court far more
than congress or the presidency.
Some of the most controversial
issues in America have been
decided by 5-4 votes on the
Supreme Court: a presidential
election, affirmative action, school
prayer, abortion, etc.
Justices have life tenure.
No justice has ever been impeached
and removed from office.
Average life expectancy of justices
is 87—ten years longer than U.S.
average.
Should we make changes in judicial
tenure or in the way the Court
J. Stevens was born on April 20, 1920
operates?