The Supreme Court’s exalted private conferences, attended only by members of the Court, have often received mixed reviews from the justices.
It’s the time when they discuss and vote on just-argued cases. And justices have said the dialogue is often cursory and hardly ever changes anyone’s mind.
A memorandum from the late Justice Thurgood Marshall, however, indicates how important the conferences are – and how angry a justice can get when one takes place without him. The memo was contained in the newly public files of the late Justice Potter Stewart, released at Yale University upon the recent retirement of Justice John Paul Stevens, the last sitting justice with whom Stewart served.
In his 1987 book The Supreme Court, the late chief justice William Rehnquist said he was “surprised and disappointed” at how little actual discussion there was among justices about pending cases. Especially for junior justices, who speak late in the discussion, their comments rarely provoke a reaction, Rehnquist said, partly because the vote lineup was often already clear by the time they speak.
More recent justices, notably Antonin Scalia, have made similar complaints, and even under current Chief Justice John Roberts Jr., reports are mixed about how useful they are in terms of fleshing out decision points and persuading other justices to change their minds.
In his angry memorandum, dated April 12, 1972, Marshall said he was “deeply disturbed” to learn that a conference had taken place even though he had told his colleagues he could not attend. Not a fan of Chief Justice Warren Burger, Marshall protested that never before had a chief justice gone ahead with a conference with less than a full Court without the consent of an absent justice.
“The conference on argued cases is an important phase of our work. Such conferences should not be held with one justice absent,” Marshall wrote. “Equally important is the opportunity of exchange and interchange around the table.”
Marshall objected that by holding the conference without him, his colleagues had placed the burden of asking for another conference on the absent justice, to enable him to record his vote. “I for one do not appreciate that weight being put on my shoulders, and do not require another conference.”
He went on to say that because the conference had taken place without him, he could not “in good conscience” participate in the votes on the cases discussed. He said he would “leave it to the press” to speculate why he did not vote in several cases that term.
One of Marshall’s clerks that term recalled the episode after hearing about the memorandum, even though the clerks did not see the memo. “During my time with Justice Marshall, he never complained to his clerks about the way Chief Justice Burger ran the Court or the conference,” said Stephen Saltzburg, now a professor at George Washington University School of Law. “But my recollection is that the tradition was not to hold a conference and discuss cases if a Justice was called away — for example, for a funeral.”
Saltzburg added, “Justice Marshall would have taken great offense if he felt that his absence was treated differently from this tradition.”
The Stewart file does not reveal the upshot of the Marshall memo, but Marshall’s pique is mentioned in The Brethren, the 1979 book that gave an inside look at the Court.
According to that account, Marshall had told his colleagues he was attending a family funeral on the day of the conference. But because another funeral – that of Justice James Byrnes – had also been scheduled at a conflicting time, the Court had gone ahead with its conference without Marshall.
“The other justices were mortified,” the book reported. “They had not objected on Marshall’s behalf. The conference was repeated, every vote retaken. No decision came out differently.”
The Brethren did not reveal its sources for that anecdote or others. Other justices and the book’s authors have said Potter Stewart himself was a major source of the book (For more on the Court’s reaction to The Brethren, check out this article by David Garrow.)
Stewart’s papers are silent on the question of his involvement, however, and the file on the book contains nothing but news clippings.
Tony Mauro can be contacted at [email protected].
