Summer at the Supreme Court: In Plain English

By Lisa Tucker
on Jul 7, 2010 at 3:30 pm

Whew!  It’s hard to believe that it’s July and the Court is in recess for the summer.  As always, we had a flurry of opinions in June; in fact, opinions came down in about a third of the Term’s docket in just a few short summer weeks.

So, now that it is summer, now what?  Some of you have asked what happens at the Court over the summer, as well as what the Justices will be doing with their “summer vacations.”

At the Court, there’s something of a changing of the guard.  This is the time when the law clerks from October Term 2009 train incoming clerks, then make their way to new jobs.  Most of them probably need a vacation; a year at the Court does not come with many days off, especially in May and June, when the opinion crunch is on.  The new clerks will be learning how to write cert. pool memos and deal with last-minute petitions for stays from defendants sentenced to death.  Let’s take a second to figure out what each of those responsibilities entails.

Seven of the current Justices take part in what is called the “cert. pool,” or a system of sharing among chambers the responsibility of reading cert. petitions (as Anna described here).  Justice Stevens did not participate in the cert. pool, and Justice Alito is the only current Justice who does not (we don’t know whether Elena Kagan plans to do so if she is confirmed)

After a party files a cert. petition seeking the Court’s review, and the other side has a chance to respond, copies of all of the briefs for that case are bundled together and sent to each chambers.  Because each Justice typically has four law clerks, twenty-eight clerks divide the load of reviewing the eight thousand or so petitions filed each year.  If you do the math, that means that each clerk reviews five or six petitions every week and prepares a memo recommending that the Court grant or deny cert. – and explaining why.  That might sound like a full-time job, and it would be for any average human, but the clerks work long hours, and they know what they’re looking for:  typically constitutional or federal statutory questions on which the federal courts of appeals do not agree (“circuit splits”).

Just as the clerks for Justice Stevens did, Justice Alito’s clerks do their own first pass through all of the cert. petitions, making a post in Alito’s chambers especially rigorous.  Why would Justice Alito decline to join the cert. pool?  Well, originally he did join.  Presumably, he decided that he wanted the clerks in his own chambers to advise him about whether to vote to grant cert., and so he opted out of the pool. Like with everything else that happens behind closed doors at the Court, though, we’ll never really know.

At the end of the summer, the Justices hold a long conference, or private meeting, where they decide which cases to hear.  According to the Rule of Four, it takes four votes to grant cert.

What about dealing with stays of execution?  Executions are carried out throughout the summer, and the Justices must be reachable in the event of a last-minute stay petition (often in the middle of the night, because executions are less disruptive to prisons at that hour).  Typically, the Justices let the Court know where they are at all times, something that is easier to do in this era of cell-phone technology (although now-retired Justice Souter famously did not use a cell phone and had to have the fire department come out to his New Hampshire home one night when his landline was off the hook and his chambers could not reach him).  The clerks, along with a permanent Court employee, follow the lead-up to all executions carefully, and they are ready to receive a last-minute phone call asking for their Justices’ votes.  Most stays are denied, and the executions proceed, but exceptions do occur, and the clerks are responsible for helping the Justices research the legal grounds for granting a stay.

Unlike a cert. grant, five votes are required to stay an execution.  As I explained here, that rule has caused problems in the past, because when four Justices found a legal reason to stay an execution, granting cert. on the issue did little good, because the execution proceeded.  That issue gave rise to the “courtesy fifth,” or the practice of one additional Justice providing a vote to stay the execution until the Court could take up the underlying legal issue.

Each Justice’s chambers is also busy scheduling appearances for the Justices.  Over the summer and throughout the year, the Justices give many speeches, receive honorary degrees, and teach classes (for example, Justice Kennedy typically teaches in Salzburg, and Chief Justice Roberts is teaching in Australia this summer).  It’s up to chambers staff to make sure that a Justice’s travel and commitments go smoothly.

And then, just like the rest of us, the Justices vacation and engage in their many hobbies.  For example, Chief Justice Roberts likes kayaking and other outdoor activities, Justice Thomas travels all over the country with his wife in their RV, and Justice Sotomayor takes in as many Yankees games as she can.  But even as they relax, they are prepping for the next Term, and, this year, for a new colleague.

Next week, I’ll write a bit about that potential new colleague and discuss the confirmation process in plain English.