LAW : Supreme Court Gathers in Secret Sessions to Choose Its Battles : Justices’ selection of cases can have profound effects, showing which statutory areas they intend to transform.

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.

Thirty days later, the prevailing side submits a brief defending the lower court ruling and typically arguing that the issue is trivial at best. A Washington law firm may charge more than $30,000 to write one of those petitions, but chances are it will be read by only one or perhaps two young law clerks.

“The initial screening is quite mechanical,” says Columbia University law professor Michael Dorf, who worked as a clerk three years ago for Justice Anthony M. Kennedy. If the lower courts are split on a matter of federal law, the clerks will recommend granting the appeal.

Suppose, for example, a federal court in Boston says a taxpayer may take a deduction for a home office because he spends 50% of his work time there. A federal court in Chicago, however, refuses to allow a home office deduction for a second worker who spends 90% of his time, but not 100%, working at home. If the second worker appeals and cites the ruling from Boston, the Supreme Court is almost obliged to hear his case.

Before this week’s conference, which will last several days, the chief justice sends to his colleagues a “discuss list” that may include about one-fifth of the cases. Those will be talked about and voted upon. It takes the votes of four justices to hear an appeal. The vast majority will be rejected without a moment’s discussion among the justices.

The justices say the constant flow of new appeals--roughly 150 each week all year long--keeps them abreast of the legal issues percolating in the lower courts. It also gives the conservative majority a chance to ride herd on the lower courts, reining in liberal judges.

For example, the Colorado Supreme Court late last year threw out as unconstitutional a voter-approved state amendment that restricted gay rights. One Friday in late February, the justices sifted through 565 pending appeals and agreed to hear only one: the state’s bid to revive the anti-gay amendment. That case, Romer vs. Evans, 94-1039, will be argued on Oct. 10.

Similarly, the U.S. 9th Circuit Court of Appeals, based in California, is known for issuing liberal decisions that make new law. Several months ago, that court surprised prosecutors by ruling that seeking civil forfeiture of the bank account of an imprisoned drug criminal violates the “double jeopardy” clause.

In August, U.S. Solicitor General Drew S. Days III sent an appeal to the Supreme Court saying that the decision, unless reversed, will upset thousands of drug cases. The appeal arrived too late to be voted upon this week.

The justices may announce as early as midweek which cases they will review.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

High Court Highlights

Appeals pending before the Supreme Court:

Rodney King case Should Stacey C. Koon, the Los Angeles police sergeant convicted in the beating of motorist Rodney King, receive a lighter sentence because King’s “wrongful conduct” prompted the confrontation? Yes, said a trial judge, but the federal appeals court disagreed and said Koon’s conviction demands a term of at least 70 months. He is appealing that decision and also asks the court to reconsider whether it is “double jeopardy” to try a defendant once in state court and again in federal court. (Koon vs. U.S., 94-1664)

Census readjustment Must the Census Bureau adjust its 1990 count in “a good faith effort...to lessen the disproportionate counting of minorities?” Yes, said a federal appeals court in New York. The case arose when officials in New York, Los Angeles and other cities claimed their residents were undercounted. Unless reversed, the decision will likely require a census readjustment. (U.S. Department of Commerce vs. New York, 94-1985)

Abortion Clinics Did Congress exceed its power last year when it made it a federal crime to block the entrance to abortion clinics? Anti-abortion activists raise that issue in a challenge to the 1994 law and rely on an April ruling from the high court that limited Congress’s power to intervene in local disputes. (American Life League vs. Reno, 94-1867)

“Green” Advertising Did California violate the free-speech rights of advertisers by regulating the use of words such as “recycled” or “biodegradable.” A coalition of advertisers asks the court to clarify their First Amendment rights. (Assn. of National Advertisers vs. Lungren, 94-1930)

Male-only colleges Can a state-funded college exclude women? Yes, said a federal appeals court in a ruling concerning the Virginia Military Institute, so long as the college offers a separate, similar program for females. Lawyers for the Clinton Administration are appealing, arguing that “separate but unequal treatment” is unconstitutional. (U.S. vs. Commonwealth of Virginia, “ 94-1941)

Japanese expatriates Did a Texas-based manufacturer which is owned by a Japanese firm violate federal anti-discrimination laws when it gave preferences to top Japanese workers over Americans? No, says a federal appeals court, concluding a 1953 U.S.-Japan treaty of friendship takes prevails over civil rights laws. The American employee is appealing. (Papaila vs. Uniden America Corp., 95-171)

Crack Cocaine Must federal prosecutors open their files to defense lawyers contending that black youth charged with selling crack cocaine have been subjected to “selective prosecution” based on their race. Yes, said the 9th Circuit Court on a 7-4 vote, upholding a discovery order issued by U.S. District Judge Conseulo Marshall. Clinton Administration lawyers urged the court to throw out this order, arguing that prosecutors should not have to spend their time “chasing statistics.” (U.S. vs. Armstrong, 95-157)