Vol. 8 No. 4 (April 1998) pp. 168-171.

DECISION: HOW THE SUPREME COURT DECIDES CASES by Bernard Schwartz. New York: Oxford University Press, 1996. 272 pp. Cloth $27.50. Paper $14.95. ISBN 0-19-511800-6.

Reviewed by Artemus E. Ward, Department of Political Science, Syracuse University. E-mail: aeward@mailbox.syr.edu.

Ever since THE BRETHREN (Woodward and Armstrong 1979), the once shrouded decision-process of the Supreme Court has moved from behind the red velour curtain and into public view for scholarly reflection and public consumption. Bernard Schwartz has done much in his previous works to illuminate the inter-workings of the Court and the interactions among the Justices. DECISION: HOW THE SUPREME COURT DECIDES CASES continues in this vein and makes a compelling case that the claims of history are more important than the claims of secrecy.

As in his recent books on the unpublished opinions of the Warren, Burger, and Rehnquist Courts, Professor Schwartz here continues to examine the behind-the-scenes activity of the U.S. Supreme Court. Through interviews with Justices and clerks, and an examination of documentary evidence such as conference notes, draft opinions, letters, and memoranda, Schwartz demonstrates how Justices form and modify their opinions on important cases. He argues that opinions matter and shows that Justices can be persuaded to change their views as the decisions are crafted. The Justices make intellectual arguments, he suggests, that have an impact on their colleagues and the Court’s final decision.

Schwartz is chiefly concerned with the decision process. It begins with the conference, where the Justices meet in private after oral-argument, to discuss and vote on cases. The opinion is assigned and the Justices exchange memoranda as the opinion is crafted. It is in this stage that cooperation plays an important role. Schwartz notes the change in the decision process from the personal contacts and one-on-one oral deliberations of the Warren Court to the written exchanges and circulation of draft opinions as the primary, if not sole, form of communication in the Burger and especially Rehnquist Court. The photocopier and personal computer have largely caused this transformation. He charts the rise of law clerk influence over the granting of cases and drafting of opinions. The Justices’ primary responsibility now lies in voting and editing. The result, he suggests, could very well lead to an erosion of the Court’s prestige. Schwartz suggests that the post-draft opinion stage is the most crucial as language, rationale, and even votes change. The final result is not the opinion of one author, but the collaborative effort of five or more Justices.

To illustrate the decision process, Schwartz selects a number of cases. In them, he highlights important features of the process. One key aspect, is the "crucial" role of the Chief Justice. Chief Justice Warren is shown to be an effective leader in such cases as BROWN V. BOARD OF EDUCATION (1954), the school segregation case, REYNOLDS V. SIMS (1964), the legislative apportionment case, and MIRANDA V. ARIZONA (1966), the criminal rights case. On the other hand, Chief Justice Warren Burger is rebuked in BOWSHER V. SYNAR (1986), the case invalidating the Gramm-Rudman Act, and has his draft opinions rewritten in SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION (1971), the school busing case, and UNITED STATES V. NIXON (1974), the Watergate tapes case. Similarly, Chief Justice Rehnquist fails in WEBSTER V. REPRODUCTIVE HEALTH SERVICES (1989), to craft a majority to overturn ROE V. WADE (1973).

Schwartz not only looks at the "big" cases, but also strengthens his argument by examining less well known, yet important, cases. One wonders, though, about the cases not mentioned. Are there instances when Warren was not able to lead the Court? How often did Burger and Rehnquist succeed in forging majority coalitions? To answer these questions, we must look elsewhere to quantitative analyses, or to the in-depth examination of different cases in order to develop a more complete picture. Of course, this is not Schwartz’ objective. He is concerned, in this instance, with defining the role of the Chief Justice in the decision process. To this end, he discusses the differences between "strong" and "weak" Chief Justices, setting up archetypal extremes in the decision process. Simply put, strong Chiefs are leaders and get their way on important cases while weak Chiefs do not. But to what extent does context matter? Do the other members of the Court have an impact on whether a Chief is strong or weak? Schwartz’ chapters on the Chiefs seems to imply that they do not. Is Warren considered strong largely because he was surrounded by like-minded Associate Justices? Is Rehnquist a weak Chief Justice because he does not enjoy the same luxury?

Schwartz moves beyond the Chiefs and shows how individual Justices are often crucial in the decision process. He suggests that this has always been the case, tracing Benjamin R. Curtis’s leading role in COOLEY V. BOARD OF PORT WARDENS (1852), the decision on state power to regulate interstate commerce, to William J. Brennan’s role in the decision processes of the Warren, Burger, and Rehnquist Courts. Schwartz characterizes Brennan as "the most influential Associate Justice in Supreme Court history" in terms of his role in the decision process (p. 163). Schwartz provides some instances where individual justices played a more influential role than the Chief. For example, A new Chief may defer to an allied, more "senior" colleague.

There are a number of important revelations in the book. Perhaps most interesting is Brennan’s role in BRANDENBURG V. OHIO (1969), overruling the Clear and Present Danger Test established by Justice Oliver Wendell Holmes Jr. The initial draft opinion written by Justice Abe Fortas would have virtually reaffirmed the Holmes standard. After Fortas’ resignation from the Court, Brennan redrafted the opinion omitting the "present danger" language used by Fortas and inserting the more speech protective standard "incitement to imminent lawless action." Also, Schwartz argues that the leadership of Chief Justice Charles Evans Hughes, and not President Roosevelt’s court-packing plan, was directly responsible for the "switch in time that saved nine" and the decision in WEST COAST HOTEL V. PARRISH (1937) upholding a minimum wage law. Schwartz points out that the conference vote to uphold the law came a month before the President’s plan was published. Of course, some of Schwartz depictions are not new. For example, Chief Justice Burger’s manipulation of opinion assignment has long been known.

Schwartz contends that vote switching is more common than is often thought. He demonstrates how this has not only been true from the earliest documented cases such as DRED SCOTT V. SANDFORD (1857) and POLLOCK V. FARMERS’ LOAN & TRUST CO. (1895), the Income Tax Case, but in many different areas of law in the Warren and Burger Courts and continues in important cases today. Schwartz also points out the "near misses" where the Court came dangerously close to ruling a different way. He suggests that ROE V. WADE (1973) was perhaps the most important "near miss." Justice Blackmun’s initial opinion was written narrowly, striking down the state abortion statute for vagueness and not because it restricted a woman’s right to have an abortion. Another important near miss was WEBSTER where Rehnquist circulated an initial draft opinion, essentially overturning Roe. Blackmun was "livid" and countered with a draft dissent declaring, "The simple truth is that Roe no longer survives. . . the majority discards a landmark case of the last generation, and casts into darkness the hopes and visions of every woman in this country who had come to believe that the Constitution guaranteed her the right to exercise some control over her unique ability to bear children" (p. 12).

Schwartz characterizes himself as a neutral reporter of the Court’s decision-making process. He interviews clerks and Justices, mines their papers, reports on how the decisions came about, and "let(s) the chips fall where they may" (p. xii). As such, he neither seeks to provide support for the Court as an institution, nor to supply ammunition for its critics. The results, however, do tend to cast the Court in a favorable light, as Schwartz admits. Unlike any other governmental institution, he contends, scrutinizing the internal processes of the Court reveals an efficient yet deliberative body. Schwartz concludes that the decision process works because it is a cooperative process.

Schwartz writing style is highly readable. There are no formal references anywhere in the book - not a single footnote, endnote, or in-text cite. While this may make the academy a bit nervous, it will allow students and lay readers to easily move through the text. Furthermore, instead of jumping feet first into the cases, he briefly provides the necessary background information about how the Court operates and paints a visual picture of the setting, making it easy for those not familiar with the Court and its inter-workings to grasp the nuances of each case discussed.

As a supplement in constitutional law and civil liberties classes, Schwartz book will set a detailed and thorough stage for reading the final opinion in a number of important cases. The excerpts of memos and draft opinions will allow students to read the final opinions with considerable insight into the reasoning behind the holdings and the decision process generally. There are casebooks that do contain some of this information, but not with the breadth and depth that Schwartz’ work provides. The book could also easily be incorporated into classes on the Supreme Court and the Judicial Process.

Critics have suggested that the kind of revelatory scholarship that Schwartz and others have done, could have a chilling effect on the interchanges among the Justices as the Court’s inner workings are revealed. Schwartz counters that there is no evidence to suggest this has or will happen. He also doesn’t think that nine conscientious Justices are going to refrain from taking certain positions simply because they may some day be revealed for all to see. He adds that more restraint on the part of the Justices could very well result in the absence of inordinate comments such as Felix Frankfurter’s thoughts about Frank Murphy, "you would no more heed (his) tripe than you would be seen naked in Dupont Circle at high noon tomorrow" (p. xi). If undesirable comments such as these do not see the light of day, Schwartz asks, how is the public interest harmed?

Any mechanism that reminds Justices that their every move is subject to the judgment of future generations can only enhance the decision process. One need only think of how the Justices who were in the majority in DRED SCOTT are thought of today. How can citizens decide whether or not they support an institution, if they know little or nothing, or worse yet have misconceptions, about the way it operates? Bringing the inner workings of the Court and interactions of the Justices to light, not only allows for a judgment of history, but more importantly, a contemporary assessment of institutional role and responsibility.

Woodward, Bob and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon & Schuster.

BOWSHER V. SYNAR, 478 U.S. 714 (1986).

BRANDENBURG V. OHIO, 395 U.S. 444 (1969).

BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954).

COOLEY V. BOARD OF PORT WARDENS, 53 U.S. 299 (1852).

DRED SCOTT V. SANDFORD, 60 U.S. 393 (1857).

POLLOCK V. FARMERS’ LOAN & TRUST CO., 157 U.S. 429 (1895).

MIRANDA V. ARIZONA, 384 U.S. 436 (1966).

REYNOLDS V. SIMS, 377 U.S. 533 (1964).

ROE V. WADE, 410 U.S. 113 (1973).

SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION, 402 U.S. 1 (1971).

UNITED STATES V. NIXON, 418 U.S. 683 (1974).

WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490 (1989).

WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 379 (1937).