Mondays with the Supremes, Part II: Matters of Protocol
A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
Alan Dershowitz: I’m not a hired gun. I’ve got to feel there’s some moral or constitutional issue at stake.
Claus von Bülow: But I’m absolutely innocent, and my civil liberties have been egregiously violated!
Reversal of Fortune (Barbet Schroeder, 1990)
With every opinion handed down, the Supreme Court not only decides important constitutional matters, but their opinions could damage the prestige and mythology so ferociously treasured. Recent decades have seen the Court adopt a relationship to the other branches of government that remains isolated and insular. Unlike the media feeding frenzy associated with the President and the Congress, the Supreme Court still forbids TV cameras during oral arguments. The media ban gives the Court a difference from the other branches, at once aloof and antiquated.
The Court desires to keep their distance from the other branches and to avoid breaches in propriety. At least that’s what the dominant institutional mythology would have one believe. Despite the nine justices lacking party affiliation on their nameplates, it is a highly political position. Many Supreme Court justices came from other branches of government or ascended the judicial hierarchy from lower courts. Once on the Supreme Court the justices don’t need to worry about re-election, but that only reinforces the new nominee’s potential danger and importance.
The Court didn’t always have this insular relationship. The day after his nomination to the Supreme Court, Robert Jackson joined FDR’s regular poker games. In these decades, the relationship between the Court and the Presidency became collegial. (Except for the explosive conflict of FDR’s “court-packing plan” that turned into a fiasco, the Court and FDR remained on amicable terms.) Even as late as the Sixties, Supreme Court Justice Abe Fortas regularly advised President Lyndon Johnson. Forced off the bench because of an investigation into the improper use of his influence, Abe Fortas’s seat left an opening for Nixon to appoint a conservative justice.
During the Forties, Tommy Corcoran, the famous New Dealer and lobbyist, got thrown out of the Supreme Court building for alleged indiscretions. These involved his lobbying on behalf of his clients to justices like Black and Douglas. While Douglas and Corcoran had a close friendship, Douglas would not stand for the lobbying. If actions like Corcoran’s were leaked to the press, Douglas and others might have to recuse themselves from the case. And if there weren’t enough justices to hear the case, the case would be either dismissed or sent back to the lower courts.
Prior to the Woodward’s and Armstrong’s Brethren, the Supreme Court preserved the façade of the apolitical. Only two major breaches of Court etiquette occurred prior to the 1979 bestseller. On the first occasion was in 1937, Hugo Black made a radio address denying he was a bigot but affirming his membership and resignation from the Ku Klux Klan.
The second occasion was in 1946 by Robert Jackson, in a heated pique when he was passed over for the Chief Justice post and his spat with Justice Hugo Black. Justice Jackson sent public cables to the Congressional Judiciary Committees exposing Justice Black’s potential conflict of interest in a mining case. Newspapers published the cables that exposed the politicking, bargaining, and ideological grudge matches that took place behind the velvet curtain. While the Supreme Court is a rare government institution that cultivates intellect and interpretation, there are still countless opportunities for alliance-building and ideological clashes. The Court may be removed from the cash-hemorrhaging insults to intelligence one endures during regularly scheduled political campaigns, but that doesn’t mean the Court isn’t an ideological battleground every bit as important as a Presidential debate or town hall meeting.
What drove Justice Potter Stewart to Bob Woodward and Scott Armstrong was Chief Justice Warren Burger’s inept and devious manipulations of Court protocol. After the Supreme Court grants a writ of certiorari (“granting cert” is the shorthand), the Court then hears oral argument. Following oral argument, then Court then votes and then writes opinions. Granting cert means the case has constitutional merit and the potential to overturn precedent. Once oral argument is heard, the Justices vote and then speak, with the senior Justice in the majority going first. Cases can have multiple votes and the real action occurs with Justices forming alliances and majority-building, every bit as important and political as that of the legislature. But the Court acts like a Microscopic Legislature, with each side battling to get the necessary five votes.
(Congress faces a more challenging prospect with 100 Senators, 535 Representatives, numerous interest groups, lobbyists, and other personalities working and undermining each other to craft a legislature best tailored to their own self-interests. While Congress votes to best please its represented constituency, the Court works for the entire nation.)
Court protocol has the Justice in the majority, not the Chief Justice; assign the opinion to another Justice to write. Chief Justice Burger’s manipulations attempted to put him in the majority and to write the opinion himself. Part of this was based on Burger’s desire to create his personal judicial legacy. Among the clerks of the Court, Burger’s dingbat Machiavellianism had them asking, “Is Burger evil or just stupid?” In one particular case, Burger voted in the affirmative and in the negative multiple times, simply to get into the majority. Burger seemed less about “sticking to one’s guns”, ideologically speaking, than acting like an attention hog. The Brethren excels when it depicts these heated arguments in conference.
During the campaigns of 1940 and 1944, William O. Douglas made no secret of “campaigning from the bench,” writing opinions that would please his liberal-libertarian constituency and also appeal to FDR in the hopes of securing the VP spot. It wasn’t until the ascent of the Missouri haberdasher and his machine-style political campaigning, that Douglas put his presidential ambitions to rest.
Once the older justices began resigning and he could appoint his New Dealer allies to the bench, FDR possessed the rare privilege of nominating nearly the entire Court. In most cases, the nomination and appointment went smoothly, unlike the televised ideological litmus tests of today. But FDR did not always have an effortless time getting his legislation passed. In the wake of the Pearl Harbor attack and pro-war/anti-Asian hysteria, one case came to the attention of the Court. The story of that case reveals how the Court refused to muscle under Presidential pressure and reassert its autonomy from the Executive Branch.