The Nine [15]
So when Rehnquist became chief in 1986, Burger had provided him with a clear picture of how not to run a conference. Rehnquist set out to do it differently, and he led by example. He would begin by briefly summarizing the case, giving his own view of the proper result, then going around the table in order of seniority. (At times the tradition had been for discussion in seniority order, then votes in reverse seniority order. Rehnquist thought that was a waste of time and combined the two rounds into one.)
The other justices followed his example. Their comments were shorter, the resolution of the cases was clearer. No one spoke twice before everyone had a chance to speak once. In time, the brevity of the conferences would come to have a large and unexpected impact on the workings of the Court, but for the moment everyone was pleased with the efficiency.
Case assignments changed, too. Every chief justice wields power through assigning big cases to his favorites (or, especially, to himself), but Rehnquist made the system as fair as possible. No one received a new assignment until he (or she) had finished the previous one. As with speaking at conference, every justice was assigned one case before anyone was assigned two. Rehnquist didn’t interfere with assignments when he was in the minority. Everyone on the Court, liberals and conservatives alike, welcomed the changes.
One of the signatures of the Burger years was that the Court decided more and more cases every year. The number of filings increased, but the number of cases the justices accepted jumped even faster. By the mid-1980s, they were hearing as many as 150 cases a year—double the number from the 1950s. Like the chaotic conferences, the ever-rising number of lawsuits contributed to an atmosphere of chaos. In those jumbled final days of the term each year, Burger often couldn’t corral five justices to agree on a majority opinion. The splintered justices would thus fail to settle the issue before them and therefore offer little guidance to the lower courts addressing similar questions. At a basic level of competence, the Court wasn’t doing its job.
For the most part, the justices controlled their calendar; they could decide how many cases to hear simply by granting or refusing writs of certiorari. (Four votes are needed to grant a writ to hear a case.) As it happened, White and Blackmun had idiosyncratic views of the certiorari process. White thought the Court should grant cert whenever there was even a suggestion that two circuit courts of appeals viewed an issue differently; other justices thought it necessary to resolve only significant circuit splits. Blackmun regarded a denial of cert as tantamount to a decision on the merits, so he wanted to grant whenever he disagreed with a lower court’s view. White and Blackmun’s approaches, plus various combinations of others, meant the caseload was becoming close to unmanageable.
By the time Burger resigned, all of the remaining justices wanted to reduce the number of cases. But how to do it in a way that wouldn’t also take away their opportunity to advocate their own quirky view of the cert process? In a little-noticed development, Rehnquist figured out a solution. One area the justices all wanted to pare was so-called mandatory appeals. Certain federal laws, mostly in obscure areas, gave the parties the absolute right to have their cases heard by the Supreme Court. These cases, which amounted to a dozen or more every year, absorbed a lot of the Court’s time on trivial issues. So Rehnquist lobbied Congress to change the law. The task required just the kind of Washington savvy that Burger claimed to have but didn’t. Rehnquist accomplished his mission in just two years. In 1988, Congress