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The secret Supreme Court: Late nights, courtesy votes and the unwritten 6-vote rule

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Much of the US Supreme Court’s business occurs in private, as the nine justices meet alone around a rectangular table in a small oak-paneled room.

The results of some of those internal deliberations become public when rulings in cases, fully briefed and openly argued, are handed down. But other decisions made in private are surrounded by more secrecy and are more mystifying, as when the justices decide which cases merit review or when the court issues orders without any publicly recorded votes or explanations late at night.

In an expansive interview with CNN on Wednesday, Justice Stephen Breyer opened the door — ever so slightly — on some of the Supreme Court’s internal customs, including on death penalty cases and midnight orders. But Breyer, the senior liberal among the nine, also emphasized the need for confidentiality in the justices’ sessions, known as “the conference,” so that they each can speak freely as cases are debated.

RELATED: SCOTUS changed oral arguments in part because female justices were interrupted, Sotomayor says

The justices’ internal workings are likely to undergo more scrutiny in upcoming months.

President Joe Biden’s commission studying the Supreme Court on Thursday released documents that showed commission members focused on, among other topics, the high court’s use of emergency orders, its screening process for deciding which cases to hear, judicial ethics and public access to court proceedings.

The conference

At their weekly private sessions, the nine decide which pending petitions to take up and, separately, cast votes on cases that already have been argued.

Chief Justice John Roberts sets the agenda and begins the discussion in the conference room off his private chambers. The room is distinguished by a black marble fireplace, above which hangs a portrait of the great Chief Justice John Marshall. The eight associate justices then speak in order of seniority, until the newest, Justice Amy Coney Barrett, has had her say.

“What happens,” Breyer told CNN, “is it’s highly professional. People go around the table. They discuss the question in the case … the chief justice and Justice (Clarence) Thomas and me and so forth around. … People say what they think. And they say it politely, and they say it professionally.”

He stressed that no harsh words or sniping occurs in these sessions, despite some of the bitter recriminations that later emerge in the justices’ written opinions.

The justices receive some 7,000 petitions annually from people who have lost cases in lower courts. They end up taking and deciding about 60 disputes for the annual session that begins each October. Four votes among the nine are needed to accept a case for review and schedule oral arguments. But for a resolution in the dispute at hand, a majority of five votes is needed.

Of the hundreds of new petitions handled each week, the justices discuss only about a dozen. That list is not made public.

Any justice can ask that a pending case be put on the list for discussion, usually after law clerks have culled those that may be meritorious. All other cases are denied review out of hand.

The justices have nearly full discretion over what cases they accept, and they tend to look for matters in which lower courts have announced conflicting rulings, so that the high court can bring uniformity to the law nationwide.

Breyer highlighted two core practices, passed on to him from now-retired Sandra Day O’Connor, the country’s first female justice, who served from 1981 to 2006 and is now living in Arizona.

“Sandra O’Connor told me there are two unwritten rules that are probably as important as any that are written. The first one is that in the conference no one speaks twice until everyone has spoken once,” Breyer said. “I was a junior justice for 11 years and I spoke last, and so that was a rule that was very favorable to me. But everybody feels you’ve been treated fairly. The second rule is no trading of votes. It’s not like Congress.”

Justices have been known, however, to sometimes switch votes during deliberations on a single case as they negotiate a majority decision, as in the 2012 case that upheld the Affordable Care Act.

Breyer declined to address whether votes in the initial screening of new cases should be made public, as some critics of the court’s operations have urged. (Breyer said in the Wednesday interview that he had not read through the testimony of witnesses who had appeared before the commission and declined to comment on its mission.)

Regarding the general need for confidentiality, Breyer said, “Transparency is usually a word that means something good, but I would say about the conference, it’s important not to have transparency. … It is very important for people to say what they really think about these cases, and that’s what happens. So I worry about changing that and somehow bringing the public into the conference.”

Breyer acknowledged that when thinking about which petitions to accept for review, he will sometimes consider not only whether a lower court wrongly decided a case or whether a conflict among lower appellate courts exists, but also how his colleagues might vote in the end on the issue.

“Can I promise you that I’ve never thought of what the outcome eventually will be? No, I can’t promise you that. … The institution, like all institutions and like all human beings, is fallible. And it doesn’t work perfectly.”

Some justices in the past have more readily referred to denying a case even when they believe a lower regional court erred, because they feared the Supreme Court majority might take the decision further for a nationwide rule. That practice has been dubbed a “defensive denial” of a petition.

In his new book, “The Authority of the Court and the Peril of Politics,” Breyer raised another reason for avoiding certain cases, related to public opinion. He observed that the Supreme Court in the late ’50s and early ’60s took a strategic approach to race-related cases after the 1954 school-desegregation decision, Brown v. Board of Education.

“For quite a few years after rendering its decision, the Court carefully chose which cases to take, sometimes avoiding ones that might thwart its ambitions in Brown — for example those that asked the Court to set aside laws forbidding interracial marriages,” Breyer wrote.

The court eventually invalidated such laws, in the 1967 case of Loving v. Virginia, and Breyer described the 13-year interim between Brown and Loving as arising from “a calculated part of the Court’s enforcement strategy.”

Death penalty cases and the ‘courtesy fifth’ vote

The justices’ handling of death row cases has drawn scrutiny from outside the court and from within. As in noncapital cases, four votes are needed to hear the merits of a legal issue. Yet a death row defendant seeking a “stay,” or postponement, of an execution, needs five votes, as is standard for most motions before the court.

That variance, however, has generated a troubling gap. Inmates might be able to convince four justices that their claims should be aired but unable to secure a fifth vote to obtain postponement of the execution.

On occasion a justice who believes the defendant’s petition lacks merit will nonetheless offer the crucial fifth vote to temporarily block the execution and allow the legal issues to be considered.

Roberts cast such a fifth vote in a 2016 case, writing, “I do not believe that this application meets our ordinary criteria for a stay. This case does not merit the Court’s review: the claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the three. Four justices have, however, voted to grant a stay. To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy.”

But a “courtesy fifth,” in court parlance, has not been granted consistently, particularly in recent years as court conservatives have been disinclined to intervene in state death penalty controversies.

Asked by CNN about the consequential life-or-death gap that occurs when a condemned inmate may have four votes to hear his claim but lack a fifth vote to hold off the execution, Breyer responded, “Rarely happens, rarely happens.”

When pressed on how often, even if rarely, it may happen, he did not know. “I haven’t kept track. … As I say, no institution works perfectly.”

Breyer suggested he was willing to provide a fifth vote in such tight cases and thought his colleagues should be similarly inclined but stopped short of saying the court should formally ensure that an inmate is spared immediate execution if he has four votes for a claim to be heard.

Throughout interviews associated with his book promotion, including on Wednesday, Breyer has resisted criticism of the court or his colleagues. Previously, however, he had pointedly voiced concerns about the “arbitrary” imposition of capital punishment, as he dissented from an order issued just before 3 a.m. on April 12, 2019.

The conservative court majority lifted a stay of execution in an Alabama case, saying the prisoner had failed to meet a deadline for challenging a three-drug lethal injection that the inmate argued would cause him severe pain and suffering.

Joined by three fellow liberals at the time, Breyer contended the majority was wrongly overriding lower court judges, who had postponed the execution.

“To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate,” Breyer wrote, later adding, “at stake in this case is the right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment.”

The unwritten six-vote requirement

Some testimony before the Biden commission on the Supreme Court highlighted problems arising from the justices’ private rules, which may be known to former law clerks and others in the elite high court world but are opaque to most people who bring cases to the justices.

Recently, Justice Samuel Alito noted in a speech at the University of Notre Dame that the court requires six votes when it seeks to reverse a lower court decision without hearing oral arguments.

Such summary reversals, as they are known, happen on rare occasions when a lower court ruling is plainly at odds with Supreme Court precedent and the justices bypass the usual briefing and public arguments. But that requisite six votes was not publicly known. Most court decisions take a simple majority of five votes.

Asked about the reasoning behind that six-vote requirement, Breyer said only, “It’s a custom.”

When asked if there was some reason to keep the requirement confidential, he said, “There is no reason.”

Midnight orders

Late-night orders have been a staple of capital cases, as condemned inmates tried to fight off scheduled evening executions. But the justices increasingly have released after hours, even at midnight, orders in noncapital cases, too. On September 1, a five-justice majority rejected a request from abortion clinics in Texas and allowed a state ban on abortions after about six weeks of pregnancy to take effect.

Breyer was among the four dissenters in that case, which continues to play out in courts. The Texas law conflicts with the 1973 Roe v. Wade decision, which made abortion legal nationwide.

When queried about the process that had led to the midnight order, Breyer said, “Why was it so late? Because probably people didn’t get finished writing … until the afternoon. … It has to get printed. There are a number of administrative steps that are taken.”

He chalked up the middle-of-the-night action not to the justices themselves, perhaps furiously writing the majority statement and the multiple dissenting opinions, but to the court’s publications team and an administrative process.

He said the justices’ work is reviewed to ensure there are no typographical errors and that case citations are accurate.

“It isn’t because we’re sitting at the desk writing until midnight,” said Breyer, in his characteristically upbeat way. “We probably finished several hours before.”

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