Supreme Court voting procedure
mschlanger at wulaw.wustl.edu
Thu Mar 24 08:31:35 PST 2005
I vaguely remember from the two years I clerked (OT 93, OT94), that
occasionally one or more of the justices would "pass," and wait till
they had heard from their colleagues before voting.
Professor of Law
Washington University in St. Louis
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mschlanger at wulaw.wustl.edu
>>> "Richard D. Friedman" <rdfrdman at umich.edu> 3/23/2005 7:09:41 PM
Very interesting. Frankly, I'm surprised that the Court would follow a
procedure in which votes are cast before every member has had a chance
have a say. Not even faculties do that.
At 06:52 PM 3/23/2005, Jeffrey Segal wrote:
>Rehnquist writes in his 1987 book, "For many years there has
>tale that although the discussion in conference proceeds in order from
>Chief Justice to the junior justice, the voting actually begins with
>junior justice and proceeds back to the Chief Justice in order of
>seniority. I can testify that, at least during my fifteen years on
>Court, this tale is very much a myth."
>In a letter to Professor Robert Bradley reprinted in the Fall 1989 Law
>Courts Newsletter (and also in part in The Supreme Court and the
>Attitudinal Model, p. 211), Rehnquist writes that Brennan "confirms
>since he came to the Court in the fall of 1956, the procedure has been
>describe it to you." (i.e., one step from senior to junior).
>I also note that Saul Brenner and Jan Palmer have an unpublished
>on the topic.
>The question of why the senior justices would give up the privilege
>speaking first and voting last is a good one, one that I don't have
>answer to. But if we believe Scalia's comment that "not very much
>conferencing goes on" in conference, then dividing the process in two
>wouldn't carry much of an advantage.
>Distinguished Professor and Chair
>Department of Political Science
>Stony Brook University
>Stony Brook, NY 11794
>jeffrey.segal at stonybrook.edu
>Date: Tue, 22 Mar 2005 17:45:36 -0500
>From: "Richard D. Friedman" <rdfrdman at umich.edu>
>Subject: Supreme Court voting procedure
>To: conlawprof at lists.ucla.edu
>Message-ID: <18.104.22.168.2.20050322174130.04096ec8 at r.imap.itd.umich.edu>
>Content-Type: text/plain; charset="us-ascii"; format=flowed
>At least into the 1940s, though discussion of cases at Supreme Court
>conferences went from senior justice to junior justice, voting then
>from junior to senior. Beginning no later than the 1970s, I believe,
>voting as well as the discussion has gone from senior to junior; I'm
>even sure if there are two separate rounds. Can anyone tell me when
>custom changed -- and better yet why and how? Thanks!
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