WASHINGTON — This is the week the justices of the U.S. Supreme Court meet behind closed doors to decide what to decide.
The secret session, always overshadowed by the attention given to oral arguments and the announcement of rulings later in the term, can in fact be just as significant in shaping the law.
This is so because the court exerts itself only in those areas of law that it chooses--and that power, if used shrewdly, sets the course for transforming the law.
The last term offered a particularly vivid illustration. The court's conservative majority, led by Chief Justice William H. Rehnquist, carefully selected cases for review in the fall. The result was a series of powerful rulings in the spring that highlighted the conservatives' dominance of the Supreme Court.
One year ago this week, the justices returned from their summer recess and sifted through 1,669 pending appeals. From that long list, they agreed to review seven cases to be decided through written opinions.
One came from a white road-builder who said he lost a contract unfairly because of a federal affirmative-action program. Another came from Missouri officials who were tired of paying for an expensive school desegregation effort in Kansas City.
A third came from state lawyers in Sacramento who wanted to pay lower welfare benefits to large families. And a fourth came from Florida Bar officials who wanted to discipline "ambulance-chasing" lawyers who contacted distraught accident victims.
In each instance, the high court used the case to issue major rulings, changing the law on affirmative action, desegregation, welfare rights and lawyer advertising.
In late October, the justices met in their regular Friday morning conference and looked over another 289 appeals. They agreed to hear one from a University of Virginia student who was denied a school subsidy for his magazine because it offered a "Christian perspective" on campus life. In late June, that case yielded a major ruling reversing earlier precedents and giving religious entities equal rights in seeking public funds.
Most of the rulings were decided by 5-4 votes, with the conservatives holding sway.
"It is an issue of having five good votes and finding the right case," says UCLA law professor Eugene Volokh, who served recently as a clerk for Justice Sandra Day O'Connor.
Thirty years ago, at the height of the Warren Court, the liberals selected the cases to review. Then, Justice William J. Brennan met weekly with Chief Justice Earl Warren to go over the pending appeals. They voted regularly along with their liberal brethren to hear appeals from civil rights activists and criminal defendants who contended that the police had treated them harshly.
These days, prisoners and criminal defendants still flood the court with appeals. About two-thirds of 8,100 appeals last year came from prisoners or others contesting criminal convictions.
Now, however, the high court rarely hears criminal cases, and most of those arise from appeals filed by prosecutors. Last year, for example, the Arizona Supreme Court threw out the drug conviction of a Phoenix motorist who was initially stopped because of an outdated arrest warrant that should have been deleted from the computer.
State prosecutors appealed in the case of Arizona vs. Evans, and, in an opinion by Rehnquist, the Supreme Court reinstated the conviction and said that computer errors are not a reason for excluding criminal evidence.
Although the justices sometimes reach out to decide highly charged issues, much of their work is driven by the need to resolve disputes in which the lower courts have handed down conflicting decisions, lawyers say.
This morning, the justices will convene for their "long conference," as it is known, because the court faces appeals--1,562 this year--that have piled up since its recess at the end of June. Once the term begins, the justices meet nearly every Friday to consider appeals.
In a sense, these appeals are the last stop on the road for legal losers. If individuals, a business or a government agency loses a case in a federal appeals court or a state Supreme Court, they may seek a final review in the U.S. Supreme Court, so long as the case turned on an issue of federal law or the Constitution.
Within 90 days, the plaintiffs may file a "petition for certiorari"--essentially a plea for the court's attention. In 30 pages or less, the petition must state the legal question raised by the case, the facts of how it arose, an account of the lower court ruling, the reasons it should be reversed and, perhaps most important, a statement of why the issue is significant. Along with the petition, the lawyers enclose copies of the lower court rulings.