Commodity Brokers of the Judiciary
“Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis . . .”
– Warren E. Burger
It is a palpable truth that law is the implementation of justice. Therefore, the ultimate ‘implementor’ of justice is the United States Supreme Court: a panel of legal experts whose only goal is justice for all. That is what we are meant to believe. However, as was demonstrative of the Burger Court, legal correctness as the motivation is often overshadowed by individual interests of the justices, with law as a commodity and negotiation as the modus operandi within and without the highest court in the land. Not only did the Supreme Court negotiate with itself but with the public as well. Through the revelations of The Brethren, our romantic ideals of the High Court are replaced by the reality: nine persons, wearing black robes, engaged in the business of “buying, selling, and trading” law.
The process of deciding Supreme Court cases seems fairly straightforward: justices select, by vote, the petitions to grant; the justices review the parties’ briefs and hear their oral arguments; all justices attend a conference to discuss the cases heard and preliminarily vote on decisions; each case’s majority opinion is assigned, written, and circulated along with dissenting (or concurring) opinions; each justice “joins” (endorses) a case’s opinion; each case’s final opinion is announced and subsequently published. By tradition, it is the senior member within the majority who assigns the drafting of the opinion to a particular justice. If only the process was that simple.
Each term, the Court agrees to hear fewer than 200 of the 5,000 cases that are filed. In order for a petition to be granted, four of the nine justices must agree to hear the case. It is as early as this stage that the negotiations begin within the Court. Because an issue of law cannot be addressed until it is brought before the Court, a pet issue of an individual justice, or justices, cannot be judicially explored at will. In some instances, a justice, or even the Court as a whole, will seek out a case that will allow them to set a particular legal precedent, overturn an earlier ruling, or expand a certain constitutional right. For instance, Justice William Brennan told his clerks that he would not grant cert in Fourth Amendment cases, unless there had been a flagrant police violation, because a majority (which seemed likely in the present Court) could overturn any case they wanted. Likewise, Justice Thurgood Marshall vowed to withhold his vote to grant cert in Fourth Amendment cases, under any circumstances, also fearing that a majority could undo the work of the Warren Court.
Just as there are issues that the Court hopes to address, there are issues from which the Court wants to distance itself. Traditionally, the Court had denied petitions about war matters, preferring to leave war to Congress. However, Justice William Douglas had longed for the Court to render a decision on the constitutionality of war. His only hope in swaying other justices to the issue would be through negotiations – perhaps his support on another justice’s pet issue would win that justice’s favor on the war issue. In one bargaining example, it is believed that Justice Harry Blackmun withdrew his majority opinion draft for Roe v. Wade, delaying the case’s decision until the next term, in exchange for Chief Justice Warren Burger’s majority vote on another case.
At no stage is the negotiation process so prominent as in the opinion writing stage, even beginning with the assigning of the opinion. Chief Justice Burger was notorious for trading his vote for control of assigning the opinion, as the following passage reports:
The problem was compounded by Burger’s willingness to change his position in conference, or his unwillingness to commit himself before he had figured out which side had a majority. Then, joining the majority, he could control the assignment.
(Although, on several occasions, he assigned the opinion while clearly in the minority, later excusing his actions as ‘an oversight’.) Once the opinion was assigned, it was the responsibility of the authoring justice to write an opinion that would be “joined” by each justice within the majority, and hopefully persuade justices within the minority. Often times, in a negotiating posture, other justices would write opinions as well, circulating their drafts to all justices or select justices, in an effort to win their vote, or simply to have their language included in the final opinion. The intent was, for example, ‘I will accept your part A if you will incorporate my part B.’ These other drafts would take forms such as memorandums (innocuous ‘suggestions’), alternative majority opinions, concurrences, or dissents.
In a busing case, Chief Justice Burger elected to write the majority opinion. Unhappy with the Chief Justice’s draft, the other majority members asked Justice Potter Stewart to draft an alternative opinion. It became clear to Stewart that the Burger was insistent on using his own language. Consequently, Stewart merged the two drafts the best he could in order to dilute Burger’s rhetoric and satisfy the other justices of the majority. In molding the document, Stewart dispersed throughout the draft Burger’s most damaging sentences, and softened a passage by removing one of Burger’s sentences and adding from his own draft. “Nearly every paragraph required a drawn-out negotiation.” Justice Hugo Black posed a major obstacle. “Spurning the negotiating process, Black insisted that he would not join any opinion that mentioned or approved of busing to achieve racial balance.” Furthermore, Burger used Black’s ultimatum as “a lever in his negotiations with Stewart.” Black was not always so amenable to negotiations. In a desegregation case, Black was adamant that an order be issued, thereby eliminating a final opinion, and that it explicitly reject the “all deliberate speed” clause from a previous case’s final opinion. He threatened to deny an unanimous decision proclaiming, “If anybody writes, I dissent.”
The members of the Court negotiated and compromised their views for varying reasons: power, external political influence, personal reputation, institutional concern, personal interests, and on occasion, for that plain ol’ idealistic reason called justice. Chief Justice Burger seemed to be motivated by everything but justice or law, as he offered his vote in exchange for the power to assign the opinion (generally to himself or a fellow conservative); he voted with the majority so as not to be the ‘bad guy’ lone dissenter; and often, he voted in accord with President Nixon’s political views. In one case, Roe v. Wade, Burger agreed to join the majority opinion, but claimed that he wished to write a concurrence. The fellow justices suspected that this was a tactic to delay the decision announcement until after President Nixon’s inauguration to a second term. (Nixon was anti-abortion rights.) As expected, Burger delivered his concurrence days after he had sworn in the President.
Often, justices traded away their opposing views in order to have an unanimous decision. While Burger’s motive often was to avoid being the ‘odd man out,’ the other justices generally had the Court’s reputation in mind. On key issues where the Court historically had held unanimity, such as pro-desegregation cases, the justices made every effort to repeat that solidarity. Also, in landmark or precedent-setting cases, such as Roe v. Wade, the Court felt that it was imperative to bring down an unanimous decision. In general, the Court disliked publicly revealing any discord among it justices on the matter of law. It prioritized its task of maintaining the viability and respect that the Court had historically commanded. The justices fought to protect “. . . the Court’s credibility, the principal source of its power. . . .[the] strength derived from the public belief that the Court was trustworthy, a nonpolitical deliberative body.” In this way, the Court negotiated with the public as well – trading their more representative views for the public’s favor. As a result, the public could keep its untainted judicial icon.
Be it for personal interests or institutional concern, negotiation permeates the process of handing down those most revered decisions, as The Brethren described: “By the end of the term, [Justice John] Stevens was accustomed to watching his colleagues make pragmatic rather than principled decisions – shading the facts, twisting the law, warping the logic to reconcile the unreconcilable.” Yet still, the commodity of law is abundant, and its brokers held as honorable. Obviously, negotiation is a way of Supreme Court life.
 Bob Woodward & Scott Armstrong, “The Brethren,” Simon and Schuster, New York, 1979 (quoting Warren E. Burger, Circuit Court of Appeal Judge), p. 5.
 Ibid., p. 115.
 Ibid., p. 174.
 Ibid., p. 108.
 Ibid., p. 44 (quoting Justice Hugo Black).
 Ibid., p. 188.
 Ibid., p. 442.
This paper ('book review' of The Brethren) was written for Business Law (masters) class, University of North Carolina at Chapel Hill. [If you steal it, at least email me and tell what grade you received...and it better have been an A+!]