High court is exercise in sometimes-frustrating consensus-building, justices say

June 10, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

Forty miles from their marble cloister and in street clothes, four Supreme Court justices relaxed yesterday and told some secrets from behind the red curtains.

At a conference of federal judges in Baltimore, the justices revealed some tricks on influencing one another's vote, some ways to scare off supporting votes and some frustrations at having a vote and a voice that sometimes doesn't count much.

A common complaint: The life of a beginner on the Supreme Court is sometimes a disappointment, even when being the junior justice means you get the last word. If six justices ahead of you in the voting lineup already agree on a case, said the current first-year member, Justice Ruth Bader Ginsburg, "there is a certain impatience with the junior justice saying anything."

Justice Ginsburg, along with Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, were on a panel at a meeting of all the federal judges who sit on lower courts in the nation's capital and many lawyers who practice in those courts. This year, the D.C. Circuit Conference held its gathering at the Stouffer hotel and provided an enthusiastic audience for the panel of justices.

Chief Justice Rehnquist is the Supreme Court's overseer of that circuit. The other three are alumni of the circuit's U.S. Court of Appeals: Justice Ginsburg was a colleague there, at different times, with Justice Scalia and Justice Thomas. They spent an hour comparing life then and now, illustrating why being a justice is very different -- and not necessarily a constant joy.

Justice Thomas, instantly recognized as he moved about the hotel corridor, bemoaned the loss of anonymity. He remembered a time, as a Circuit Court justice, when he walked past a courthouse steps news conference, entirely unnoticed.

When he wrote a ruling there, he recalled, the news media would say it was a decision by the Circuit Court. Now, when he writes one, "they say, 'Clarence Thomas today decided . . .' "

The justices from time to time did fall back into their habit of disagreeing -- this time, on whether they ever lose sleep over big decisions with no one higher to repair the damage if they get it wrong.

UI "Even in important cases," said Justice Scalia, "I don't think I lose

sleep or get nervous because there is no one to correct us. You just call it and let it go."

Not so, said Justice Thomas in a rare point of dissent from a Scalia judgment. "I disagree; I do lose sleep over a few of those cases."

There also was some disagreement about how hard a justice should work to build a court majority beyond the minimum of five.

"It is nicer to have six or seven," said Justice Ginsburg. "I don't think you can lay that down as a general rule," retorted Justice Scalia. He said that, if a justice is trying to break new ground in the law, and an opinion attracts the support of seven justices, "You say, 'Doggone, I didn't go far enough!' "

Justice Thomas noted that a justice's influence seems to wane if a colleague is writing a decision that has attracted majority support. "A lesson I learned," he said somewhat ruefully, "is that after a writing judge has five votes, your opinions [on the issue] no longer are sought."

Justice Ginsburg said that writing opinions was "a more daunting" task as a Supreme Court justice, because there are eight other minds being wooed. On a three-judge Circuit Court panel, she said, "you only have to carry one other mind."

To win over others, she said, she sometimes will agree to insert into her drafts "some things I would not write if I were writing for me and one other."

Justice Scalia quipped: "Ruth, if you're going to be that accommodating, you'll get a lot more suggestions!" As for himself, he joked, he personally was willing to accept someone else's insertions in his drafts -- "if they are superfluous and unnecessary."

Justice Thomas suggested that justices have to be careful about "over-writing" an opinion -- presumably, making it go further than necessary.

"You can start with nine [votes] and end up with [just four]," he explained. Someone else may put in a less-sweeping alternative draft, and that "siphons off votes."

Evaluating the importance of lawyers' oral arguments to the court, Justice Thomas said that the best way to "undo" a "fairly good" appeal was to make a low-quality argument.

Commenting upon his practice -- widely noted by court observers -- of saying almost nothing in any hearing, Justice Thomas said that he is "far less active . . . in asking questions" than he was on the Circuit Court. He was not asked why.

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