Nonmajority Rules and the Supreme Court

It is no secret that the Supreme Court has become a deeply divided institution. Its divisions are reflected, for example, in sharp disagreements over such issues as the constitutionality of the death penalty, the contours of the right to an abortion, and the scope of states' immunity from suit under the eleventh amendment. They are reflected in the growing polarization of the Court's voting lineups. And they are further reflected in the rising numbers of separate writings, as Justices choose to express their individual views at the expense of uniting behind a single opinion. Less widely observed, but no less prevalent, are heated disagreements over the Court's internal operating rules-the rules the Court uses in deciding whether, and how, to decide particular cases. The Court traditionally has been reluctant to make public its inner workings. But the last few Terms have yielded a surprising number of opinions concerning these internal operating rules. The Justices' positions on these rules often are as bitterly divided as their positions on various substantive issues. In part, of course, these disagreements can be the result of substantive conflicts. Indeed, a Justice might adopt a position on an operating rule because of its potential effect on the outcome of a particular case. But conflicts over internal operating rules can also reflect a broader struggle over the nature of the Court as an institution and over its responsibilities to the litigants before it and to the legal system as a whole.