What Rules the Supreme Court?

First of all this is not an election type debate, it is request for information regarding the workings of the Supreme Court.

The Supreme Court seems shrouded in mystery. It appears they operate by their own rules.

  1. Can a Supreme Court Justice “filibuster”? In other words can a Justice prolong a debate to the point that other Justices will give up or concede a little on their positions?

  2. Notably absent from last nights rulings were opinions from Justice O’Connor and Justice Kennedy. Is it possible to ask individual Justices for clarification? Could a team of lawyers call up Justice O’Connor and ask her to draft her opinion of the case?

  3. Why can’t Justices appear on news programs to explain their rulings? Could a Justice be removed for talking to the press?

I don’t know for sure about your questions, but they do raise an interesting point! Perhaps Justice O’Connor was missing because it was time for her to geet back to the “Home” and take her Medication! (What is she, like 100 years old or something?!)

As far as the television appearances, I would think that this is because they don’t want the justices to be “target practice” for some looney tune protestors or something! It also concerns me that one “fillbuster” can hold up an entire case until he or she gets the others to “agree”.

I know this is not supposed to be an election thread, but oh, how I wish AL would suck it in, get on with life, and find more productie ways to spend the millions and billions of dollars the democratic party has thrown at him. (BTW, I voted for Al Gore) While I don’t agree with the hand he has been dealt, I think he could have made it work to his advantage, had he conceded early in this scandal!

One last question, who’s tax dollars are paying the courts salaries, etc. while this whole “JOKE” is going on???


Well, there’s not really a lot that we know about how the USSC works; they don’t open their internal proceedings to anyone. But all debate in the Court is internal- I don’t see how a single Justice could “force” debate upon an issue. The other Justices would just write their opinions and force a verdict, with the “filibusterer” being forced to either write an opinion/dissent or abstain.

Remember that “filibustering” is based upon the Senate and House rules for debate- the USSC internal debates are probably much less formal and structured.

It’s possible. Whether O’Conner bothers to respond to such inquiries, however, is a completely different matter. There is no Constitutional requirement for a Justice to write an opinion on any case.

Well, a Justice couldn’t be removed for talking to the press- it’s not illegal, and the only way to remove a Justice would be through impeachment- but the USSC has a long tradition of silence, and one would expect that a Justice who broke that tradition by blabbing about everything to the press would not be received well by the other Justices at future points.

Generally, IMO, the tradition of silence and low exposure is done to try and preserve the image of the Supreme Court as impartial observer. Sure, the Justices were all appointed by a certain party, and many Justices were at one point involved in politics (most notably Chief Justice William Howard Taft, the former President, and Chief Justice Charles Evan Hughes, who had been the Republican’s candidate for President in 1916); but party affiliation doesn’t necessarily mean anything (note that Chief Justice Warren, who is considered to have lead the most liberal SC in recent history, was appointed by Eisenhower and had been Dewey’s running mate in ‘48; note that Justice Stevens- considered one of the more liberal members of the current bench- was appointed by President Ford; note that in the recent ruling against Gore, Justice Breyer- appointed by President Clinton- did not join Ginsburg and Stevens’ dissent), and the general opinion is that the country is best served by a Supreme Court that stands independent and above party. Were the Justices to join in on talk shows and publicly state their opinions and affiliations- it would take away somewhat from the mystique and apparent impartiality of the Court.

Of course, whether any of that “mystique” and “apparent impartiality” has survived Bush v. Gore remains to be seen…

P.S.- For sassyKYredhead: O’Connor is 70 years old (and I assume you’re less than 20, given your opinion of her age). Federal tax money pays the salaries of the Justices.

It only takes five votes for the Court to decide a case, so a single justice trying to “filibuster” would have a hard time of it.

Since O’Connor and Kennedy were clearly in the majority last night, but did not join in the Rehnquist/Scalia/Thomas concurring opinion, the obvious conclusion is that it was O’Connor and/or Kennedy who wrote the per curiam opinion. Which is pretty lame as far as I’m concerned–if you’re going to decide who becomes the next president, at least have the guts to put your name on the opinion that does it.

I seem to remember a few ex-justices talking about their decisions after they’ve retired. One even recanted his position on the 1986(?) 5-4 decision that narrowly upheld Georgia’s sodomy statute. But it would be inappropriate for sitting justices to say anything more about their decisions than are contained in the opinions themselves. After all, you don’t want to give the appearance of having decided some future case before the question even arises. (Which, incidentally, is also the rationale that anti-abortion nominees use whenever the Judiciary Committee asks whether they’re anti-abortion.)

Since the concurrence to the per curiam opinion was written by Rehnquist, along with Thomas and Scalia, I would think that logically it was either O’Connor or Kennedy who wrote the majority opinion. They were the only two who didn’t dissent or add any other concurring opinion.

Because of this, one, or both, them likely wrote the majority opinion.

Re: “P.S. For SassyKyredhead” SCREW YOU!

FTR, I am an educated 28-year-old married white female, who is not at all amused at your obvious attempts at sarcasm!!!

At-Least mine were more suttle, and related to the thread!

But, since we are on the subject, I’ll beet you are old enough to share a room with Justice O’Connor, aren’t you?!?!?!?!

The comment was not meant as a jab at elderly people, but rather at the fact that it’s somewhat distressing, IMHO, that once you are appointed to the USSC, you can hold that office for as long as you see fit, or until you die, whichever comes first.


Ahem. We do not screw each other in General Questions.

When you post silly, unhelpful, off-topic rants as you did, you can expect to get a little ribbing over it. Since you are acting like an eight-year-old, I’d say that the poster’s assessment of your age was generous.

Knock it off or stay out of General Questions.

Relax. The obvious advantage of lifetime (actually, “good behavior” is how they put it in the Constitution) membership on the bench is to help immunize the justices from ordinary political pressures. Can you imagine a court of elected judges in the 1950s that would have outlawed segregation? If you don’t have to worry about losing your job, it’s a lot easier to do the right thing. By which I do not mean to imply that last night’s decision had nothing to do with party politics or that it was the right call–just that lifetime tenure helps.

a thousand apologies to the moderator…I should have kept my opinions to myself, and I will try to refrain in the future…

I’ll excuse myself from further posts in this thread, unless I am provoked unnecessarily.


Suttle, indeed. Why I almost didn’t get your allusion to her age when you said “100 years old or something”.

In defense of SassyKY, I don’t think his/her clever little jab at Justice O’Connor was so bad as to warrant the personal attack on her made by John C. Obviously, a lot of people are upset right now over the conservative Supreme Court members.

I was more bothered by her paragraph about how Gore should concede. Now that was off topic and lengthy, as she even stated. Maybe that’s why John C. was so ticked off and chose to try insulting her. Although, I thought John saying she was 20 was not nearly as bad as Manhattan calling her an 8 year old. Gee, that seemed uncalled for.

*Originally posted by Cheese Head *

Thanks! It’s nice to know that not everyone gets so bent out of shape over a total stranger’s opinion, and when they do disagree that they are able to do so without resorting to calling others names.

To everyone else…
Can We Forget About It Already???


I don’t believe it does follow that O’Connor or Kennedy wrote the per curiam opinion. That opinion was simply the one that the justices in the majority agreed to, and could have been written by any one of them. The other three simply agreed to additional points that no one else did. But Rhenquist, say, could have written the opinion, O’Connor and Kennedy had nothing to add and disagreed with the further points made by the other three.

On another note, as to what rules the Supreme Court, apparently the most important principle of constitutional law is that five votes beats four votes.

Justice O’Connor is not the oldest justice, to my knowledge, but she has a chronic illness the name of which escapes me…not Parkinson’s, but I think whatever Katharine Hepburn has.

A good friend of mine is a lawyer, and has had one of his cases argued before the court. He went to DC and got to watch the case being argued.

My friend thought he was scoring major points with O’Connor, because she kept nodding through all of his side’s arguments. Then he realized it was just her head trembling from the illness. D’oh!

Anyway, while she’s not the oldest, she’s expected to be among the next few to retire, owing to her poor health.

Regarding opinions: Every justice can add their opinion to a case. If everyone in the majority votes a particular way for the same reason, there will usually be just one written opinion. But maybe one or more justices voted with the majority, but for different reasons. They’d then write separate concurring opinions.

Same with the minority votes; they can write separate dissenting opinions.

So if a justice wants his/her thoughts to be known, this is how they usually do it. They don’t get on the horn to the Washington Post.

I just heard today that this decision wasn’t signed by the justices.

  1. Is this true?

  2. If true (or if its even possible), why would the justices omit this?

  3. What does it mean? Some sort of backdoor that enables the SC to alter the decision at all?

Thanks in advance.

  1. Yes, it’s true that the lead opinion was not signed. It was issued as being written by the court, or “per curiam.”

2 & 3(a). I’m unaware of the standards (if any) for the SC to issue a per curiam opinion. In fact, I don’t know of any modern SC per curiam opinions other than the two Bush v. Gore cases. State appellate courts usually issue per curiam opinions on cases where the law is long-settled and non-controversial, i.e., where it’s not worth the court’s time to bother and go through a full-blown opinion. It seems very unusual to me to see a per curiam issued when there is even one dissenting opinion, much less four. My best guess here is that they wanted to make this look as much as possible like it was the judgment of the Court, not just of the five people in the majority. (Notice, however, that the dissenters consistently refer to the per curiam opinion as “the majority.”)

3(b). SC rules may allow the losing party to make a motion for a rehearing, but issuing a per curiam would have no bearing on revisiting the case. If a similar issue ever arises again, though (god forbid), my guess is the fact that it is a per curiam from a deeply divided court would make it look somewhat less authoritative as a declaration of what the law is.

So how does that make it different from a normal SC ruling? Is it any less binding?

I was a friggin’ Government major, but apparently I slept through my Con Law class.

Couple of book recommendations for everyone:

Decision by Bernard Schwartz, and Closed Chambers by Edward Lazarus.

Really interesting reads that provide some inside insight into the workings of the Court.
By the way, re: modern per curiam opinions…off the top of my head, Buckley v. Valeo was one such.

Yes, they have done this since the Constitution’s Article III, Section 2 is so broad. The case of Marbury v. Madison in 1803 set the tone for creating an internal standard of power when it was the first time a law was declared unconstitutional. Since then, Congress has given them authority for the political purpose of having an umpire to point to when they win.

The Pentagon Papers case was a per curiam opinion, although I believe that Justice Brennan most of it. He has a long concurrence in it.

I don’t have the exact cite for the case. I believe it’s something like “N.Y. Times v. U.S.”. It was a case of certiorari denied to be precise.