Woodrow Wilson said they were a Constitutional Convention in continuous session, and Charles Evans Hughes observed with only a twist of irony that the Constitution is what they say it is. Each working day -- from the first Monday of October until the end of June or early July -- the Justices of the U.S. Supreme Court are asked by specific litigants with particular problems, Pray tell me, what does the Constitution mean?
When a major ruling is announced or a Justice resigns, as Lewis Powell did last week, public attention briefly turns to the court. But for the most part the Justices work in a hushed corner of the public arena. An average of 5,000 cases a year are submitted for their review, and they normally select 150 to 180 on which to hear oral arguments and render written decisions. The Justices begin that process at regularly scheduled discussions. Usually just after 3 p.m. on Wednesdays or at 9:30 a.m. on Fridays, they enter a spacious, oak- paneled conference room, located behind the courtroom. Following a century- old custom, they shake hands with one another and then settle around the rectangular conference table, with the Chief at one end and the senior Associate Justice, currently William Brennan, at the other. The most junior, now Antonin Scalia, sits to Brennan's right and answers any knocks on the door or hands out any messages necessary. No law clerk or other person is in the room during the conference.
The Chief speaks first, usually outlining the facts and issues in the case and expressing his tentative vote. The other Justices follow with their views in order of descending seniority. The outcome is now provisionally decided, and the majority opinion is assigned by the Chief or by the senior Justice in the majority. Then begins the writing process, for the majority and the dissenters. A Justice produces a draft, or reworks one from a law clerk, and circulates it to colleagues. Changes may be requested or offered to pick up or hold a vote. A coalition can come unraveled; a close initial vote may wind up going the other way. So the first audience a Justice must please is within the court, but the final opinions are directed beyond the litigants to guide lower-court judges, sometimes to instruct the nation, occasionally even to address history.
The reasoning is businesslike, lawyerly, as much to the point as the Justices can manage. But frequently an issue will incense or a principle inspire. Their words, which are their deeds, are part of what Americans live by. These selections are from the members of the current sitting Constitutional Convention.
WILLIAM REHNQUIST
A conservative 1971 Nixon appointee who became Chief last year
The court, striking down the death penalty in 1972, said the way it was then imposed offended decency. Rehnquist dissented.