Conference of the justices
Significance: The opportunity for face-to-face deliberation is an important component in the promotion of collegiality, enabling the justices to speak in a unified institutional voice. In the contemporary period, however, the conference is of declining significance.
The nature of the conference of the justices has evolved over time, reflecting the changing environment and developing role of the Supreme Court. During its first decade, the Court followed the English practice of issuing seriatim opinions, each justice writing a separate opinion for each case. Among the innovations of Chief Justice John Marshall, in 1801, was the adoption of the opinion of the Court. This permitted the Court to speak in a singular, unified voice, thus enhancing its prestige and promoting greater clarity in its legal pronouncements. Achieving this unity required the justices to negotiate a compromise among their individual opinions. Marshall's practice, followed through much of the nineteenth century, was to conduct conferences during the evening to deliberate cases argued each day. This was facilitated by the fact that Court sessions were then of short duration, the justices having circuit duties during the rest of the year. Residing in a common boarding house, the justices dined together and had ample time to reach a common result and a common rationale for the Court's decision. Dissents were relatively few, and concurring opinions were rare. For much of the early twentieth century, conferences were held on Saturday during the Court's term. Chief Justice Earl Warren moved the conference to Friday in 1955. The justices usually spend the morning voting on writs of certiorari to choose the cases the Court will later hear from among those petitions on the discuss list. Typically, some attention is also given to routine orders, such as stays to delay action by the parties of a suit until the Court can resolve their dispute. The remainder of the conference is devoted to deciding the twelve cases argued the previous week. During the 1970's and 1980's an additional conference was introduced on Wednesday afternoon, to discuss the four cases argued the previous Monday, leaving the eight cases argued on Tuesday and Wednesday for the Friday conference. A reduction in the number of cases heard by the Court has eliminated the need for this supplementary conference in recent years. All cases are now discussed on Friday. However, during May and June, when the Court is not hearing oral arguments, the conference is moved to Thursday. In late September, the justices meet in special daylong conferences to discuss the certiorari petitions that have arrived over the summer. Additional conferences might be called to meet special needs.
All conferences are held in the conference room, adjacent to the chief justice's chambers. After a ceremonial handshake among all the justices, the chief justice presides over the conference from the head of a long conference table. The senior associate justice sits at the opposite end, and the remaining justices sit around the table, usually in order of seniority. Absolute confidentiality is observed, and no outsider not even the justice's clerks may enter the room while the justices are meeting. If messages or items must be delivered to the conference room, a knock on the door will be answered by the most junior justice. Because of this secrecy, the conference is difficult to study. Knowledge of the proceeding comes from docket books and assorted notes by individual justices that have been saved and have become available to the public, often years after the justice's death. Occasional published reflections by justices also shed light on the subject. No doubt the tenor of the conference varies according to the personalities of the justices, the skills of the chief justice, the ideological divisions on the Court, and the contentiousness of the issues under discussion. Conference discussion tends to be candid, even blunt, but brief. The chief justice speaks first, outlining the issues of the case and stating his or her views. Other justices speak in order of seniority and may disagree with the chief justice's understanding of the case or its proper resolution. Previously, after every justice spoke, the justices voted in ascending order of seniority, but this practice has been discontinued. The position of each justice is implicit in his or her comments and an apparent majority can usually be discerned without an actual vote. Discussion will then move on to another matter. The assignment of opinion writing occurs soon after the conference. If in the majority, the chief justice assigns the opinion; if not, that task falls to the most senior member of the majority. In the latter part of the twentieth century, the opportunity for face-to-face deliberation became a scarce luxury, sacrificed to burgeoning caseloads. No longer an instrument for building consensus, the modern conference is mainly an occasion for the justices to state their individual views, make a tentative vote, and gain a sense of the majority. Discussion on each case is perfunctory, with little attempt made to persuade or to negotiate a consensus. A justice might occasionally change his or her opinion on some matter as a result of conference discussion, but this appears to be the exception, not the rule. After many years of working together, the justices rarely surprise their colleagues, and time for extended discussion simply does not exist. The deliberative process continues, but the negotiation of common ground in support of the Court's pronouncements now occurs primarily through the process of drafting and circulating opinions. The pressure of the workload, the growth of the role of clerks, and modern office technology have isolated the justices from one another, as captured in Justice Lewis F. Powell, Jr.'s description of the modern Court as “nine small, independent law firms.” Collegiality remains only to the degree that these separate firms come together to criticize each other's work. With this decline in collegiality, the Court has seen a rise in the number of concurrences and dissents filed. The result is that the Court now speaks in a less clear voice.
- Dickson, Del, ed. The Supreme Court in Conference, 1940-1985: The Private Discussions Behind Nearly Three Hundred Supreme Court Decisions. New York: Oxford University Press, 2001.
- Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington, D.C.: Congressional Quarterly, 1998.
- Johnson, Timothy Russell. Oral Arguments and Decision Making on the United States Supreme Court. Albany: State University of New York Press, 2004.
- Lazarus, Edward. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. New York: Penguin Books, 1999.
- O’Brien, David. Storm Center. 7th ed. New York: W. W. Norton, 2005.
- Perry, H. W. Deciding to Decide: Agenda Setting in the United States Supreme Court. Cambridge, Mass.: Harvard University Press, 1991.
- Rehnquist, William H. The Supreme Court: How It Was, How It Is. New York: Oxford University Press, 1987.
- Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993.