Academic highlight: Gonen and Davies on “in chambers” decision making
on Aug 21, 2012 at 11:37 am
A few weeks ago, Chief Justice Roberts issued an order staying the Maryland Court of Appeals’ ruling that the state’s DNA Collection Act violated the Fourth Amendment. As a result, the police in Maryland can continue to collect genetic material from arrestees until the Court either hears and decides the case or denies the petition for a writ of certiorari. As Circuit Justice for the Fourth Circuit, Chief Justice Roberts was authorized to make this decision entirely on his own. Individual Justices have long been empowered to grant petitions for extensions, stays, injunctions, and habeas relief (though in practice habeas petitions are almost always referred to the en banc Court). Over the last few years, however, a few academics have examined single-Justice decision making more closely, and some have questioned it on both constitutional and policy grounds.
Daniel Gonen’s article, Judging in Chambers: The Powers of a Single Justice on the U.S. Supreme Court, provides fascinating examples of such “in chambers” decisions – such as the time lawyers seeking a temporary restraining order were forced to hike for hours to track down Justice Douglas, who had a habit of disappearing into the wilderness for weeks at a time during the summer recess. Gonen is critical of the frequency of single-Justice decisions, and argues that an individual Justice should only make decisions on substantive matters in an emergency, when time is short and the other Justices unavailable. An article by Ross Davies, The Other Supreme Court, describes how from 1802 to 1838 Congress required a single Justice to preside over the Court’s August Term, issuing decisions on behalf of the full Court on a limited set of issues. According to Davies, this thirty-seven-year interlude suggests that the Constitution’s requirement that there be but “one supreme court” is more flexible than some contend today.
Even though decisions by a single Justice “in chambers” have a longstanding pedigree, these articles raise some hard questions about the practice. For example, is the Justice acting on behalf of the entire Supreme Court, or just him- or herself? Can another Justice, also acting alone, reverse such a decision? (In 1973, Justices Douglas and Marshall issued conflicting “in chambers” orders within a few days of each other that lifted, and then put back into place, the Second Circuit’s stay of a district court’s decision to enjoin military operations in Cambodia.) And even if it is constitutionally permissible, is it wise to permit a single Justice to make decisions that can put an end to litigation (such as when a Justice’s refusal to grant an injunction moots a case)? These articles provide an interesting perspective on the longstanding but under-explored practice of “in chambers” decision making.
[Update: I’ve just been informed by Ross Davies that The Green Bag, in collaboration with Cynthia Rapp of the Clerk’s Office, has been gathering and publishing in-chambers opinions for several years. All of that work is available for here, and most installments include some sort of substantive introductory essay or comment.]