Annual Ritual Shapes Supreme Court Agenda

This morning at 9, one of the capital’s most important and least known annual rituals gets underway, heralded only by the sound of a buzzer on the first floor of the Supreme Court.

Gathered behind closed doors for the first conference of the new term, the nine justices will shake hands, trade a few words about their summer vacations and sit down to decide on the 1,701 appeals that came in while they were away.

It won’t take long.

In a rapid-fire series of votes, they will select a dozen or so cases for full hearings and written opinions. Then, in large part because of negative recommendations from young law clerks, they will reject the rest.

After a quick three hours, they will adjourn. Other appeals will be considered by the justices beginning in October at conferences every Friday of the term.

As the civic textbooks say, in America you can appeal your case all the way to the Supreme Court. And the high court is free to decide which cases and legal questions are worthy of its time and attention.

What the textbooks do not say is that, chances are, the justices will not even look at your appeal before dismissing it.

For the justices, the first fall conference--coming a week before the official opening of the new term--often sets the agenda for the year ahead. Two years ago at this time, the justices announced they would decide on the constitutionality of doctor-assisted suicide. The year before, it was the legal status of federal affirmative action.

But for many lawyers and their clients--the first fall conference is both highly anticipated and ultimately disappointing. Hundreds of lawyers labor over their appeal petitions but fewer than one in 100 wins a full review.

“It’s a mysterious process, but I can tell there is a lot of energy devoted to getting in that door,” says Washington attorney Theodore J. Boutrous Jr.

Big law firms often charge $30,000--and sometimes more than $100,000--to write an appeal petition. Yet getting the court’s attention has become much harder. While the number of appeals has risen gradually to nearly 7,000 annually, in recent years the justices have agreed to decide fewer than 100 cases during a term, down from 150 in the late 1970s and early 1980s.

In that earlier period, then-Chief Justice Warren E. Burger complained that the court was overworked and understaffed. The first conference--known in those days as the dreaded “long conference”--often dragged on for a full week as the justices haggled over hundreds of cases. In despair, Burger called for the creation of a junior Supreme Court to relieve the workload.

Since replacing Burger in 1986, Chief Justice William H. Rehnquist has steadily whittled down the decision docket. He has insisted that the court focus only on major legal questions and ignore the rest. These days, no one speaks of the need for a junior Supreme Court.

With Rehnquist at the helm, the justices move quickly and efficiently--too efficiently, some say--to sift through the huge pile of pending appeals.

“They are interested in managing federal law, not doing justice in individual cases,” said Thomas Goldstein, a Washington lawyer who has made a specialty of analyzing what cases attract the court’s attention.

So, what does it take to win a review by the high court?

A “split in the circuits,” Goldstein said, meaning contrary decisions by different federal appeals courts on the same legal issue. “That is the primary factor. They want uniformity in [federal] law,” he says.

Suppose the U.S. Circuit Court of Appeals in Boston rules that a taxpayer can take a deduction for a home office even though he has an office elsewhere and later the U.S. circuit court in Chicago rejects the same claim. It may not sound like a fascinating legal issue, but the Supreme Court would probably take up the matter when one of the cases is appealed.

However, if taxpayers say they were penalized by the Internal Revenue Service after following bad advice from their tax advisor--and several pending appeals make just that claim--the high court almost surely will dismiss the appeal.

According to former law clerks, the justices rarely read the petitions. They rely instead on memos from clerks who do the initial screening and describe the key issues raised in the appeals. In most instances, an appeal is doomed if the clerk recommends that it be denied.

“It’s really an extraordinary process. Lawyers go to such great effort to craft these petitions, but they are often reduced to a four-page memo from a recent law school grad,” Goldstein said.

Each year, a new crop of clerks arrives in July and they are especially cautious at first in recommending that the high court hear a case.

“There’s nothing more humiliating than recommending a grant [of review] and having the court vote to deny,” one former clerk said.

The result, according to some lawyers, is a strong “bias against grants,” especially early in the term.

“It’s frustrating. How do you explain to a client that his case has been rejected by a 25-year-old law clerk?” asked Carter G. Phillips, a veteran Supreme Court advocate.

Despite the court’s stingy attitude, there is no shortage of new appeals covering a vast spectrum of law. On average, about 125 arrive every week throughout the year.

Many are business disputes. One pending appeal has composer Andrew Lloyd Webber asking the court to throw out a copyright infringement suit filed by a folk music singer who says “The Phantom of the Opera” was patterned after his tune (Webber vs. Repp, 97-1881).

And the alternative game board maker “Anti-Monopoly” wants the court to revive its antitrust lawsuit against Hasbro Inc. and retailer Toys R Us for allegedly conspiring to monopolize the market (Anti-Monopoly vs. Hasbro, 97-1846).

The Wal-Mart Stores have appealed the case of Clyde Griffith, a former sales clerk who won government disability benefits because of a back injury and sued the retailer for discrimination based on his disability. In its appeal, the discount chain wants the court to rule that people who are deemed totally disabled cannot sue for discrimination because they cannot work (Wal-Mart vs. Griffith, 97-1991).

At stake in another appeal, from the National Collegiate Athletic Assn., is $67 million, and perhaps the future of college sports (NCAA vs. Law, 97-2004). Last year, 1,900 assistant college coaches won a huge antitrust judgment against the NCAA for capping the salaries of assistant coaches.

“Sometimes you have to be blunt with clients and say their case is not worthy [of the court’s attention], but this one is obviously worthy,” said Roy T. Englert Jr., another veteran court advocate, who appealed on behalf of the NCAA. The lower court decision “severely threatens [the NCAA’s] ability to regulate college athletics,” he said.

Of course, many appeals come from prison inmates, including those on death row, who need not pay the $300 filing fee. But these days, the court rarely grants such appeals.

Prosecutors and state attorneys fare better. California Atty. Gen. Dan Lungren is asking the court to revive a 1992 state law that seeks to pay lower welfare benefits for 12 months to people who move from, say, Louisiana to California. Twice, the federal courts have struck down the two-tier payments as unconstitutional (Anderson vs. Roe, 98-97).

Often, the most far-reaching appeals come from interest groups.

Aurelia Davis sued a Georgia school district because her daughter was repeatedly harassed at school and even contemplated suicide, yet school officials refused to intervene. She lost, but the National Women’s Law Center has appealed and urged the justices to take up the question of whether schools can be held liable for student-to-student sexual harassment. Clinton administration lawyers also urged that the appeal be granted (Davis vs. Monroe County, 97-843).

Two years ago, in a major victory for the gay rights movement, the court struck down a Colorado law that barred anti-discrimination protections for gays and lesbians. Even so, a U.S. appeals court upheld a similar ordinance in Cincinnati. The Lambda Legal Defense Fund wants the court to reverse that ruling (Equality Foundation vs. Cincinnati, 97-1795).

The volume of appeals is daunting, but the justices and their clerks began going through them in late summer, when the court was officially in recess.

A few weeks ago, Rehnquist sent his colleagues a list of the appeals that he believes should be discussed at today’s conference. The other justices were free to add cases to that list, but court officials said that fewer than one in 10 appeals makes the “discuss list.”

Those appeals will be brought up for debate. It takes the votes of four justices to grant the appeal and schedule the case for an oral argument in several months, probably in January.

Cases that do not make the discuss list are rejected without a moment’s consideration by the justices.

By Tuesday morning, court officials will begin calling a few lucky lawyers to inform them that their cases have been granted hearings before the Supreme Court of the United States.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Questions Before the Court

Here are the highlights of appeals pending before the Supreme Court for the term beginning today.

* STUDENT HARASSMENT: Can school districts be held liable for failing to stop severe harassment of a child by other students? (Davis vs. Monroe County, 97-843)

* DENTISTS: Can an association of California dentists discipline members who advertise “low fees” or does this restriction violate federal free-trade laws? (California Dental Assn. vs. FTC, 97-1625)

* GAY RIGHTS: Can a city charter amendment bar gays and lesbians from seeking legal protection against discrimination? (Equality Foundation vs. Cincinnati, 97-1795)

* TEACHER: Can a high school teacher be punished for putting on a play that angered some school board members or does she have a right to academic freedom? (Boring vs. Buncombe County, 97-1835)

* MEDIA: Can a news organization be sued for an illegal search because a reporter accompanied federal agents who raided a ranch? (CNN vs. Berger, 97-1914)

* COLLEGE SPORTS: Can the intercollegiate athletic association regulate the salaries of assistant coaches, or is this an anti-trust violation? (NCAA vs. Law, 97-2004)

* WELFARE: Can California pay lower welfare benefits to newcomers from states where aid payments are less? (Anderson vs. Roe, 98-97)

* PROPERTY: Can the state be forced to pay damages for an unwarranted, two-year delay in granting a development permit? (Landgate Inc. vs. California Coastal Commission, 98-183)

* WHITE HOUSE: Are the president and his White House lawyers entitled to confidential discussions, or must they testify if subpoenaed? (Office of the President vs. Office of Independent Counsel, 98-316)

* CAMPAIGN FUNDING: Should the court reconsider the Buckley vs. Valeo decision of 1976, which struck spending limits for political candidates? (Cincinnati vs. Kruse)