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A Better Partnership
May 18, 2009

Chief Justice Kelly on communications among the Justices

Former Chief Justice Taylor has remarked that the Justices do not discuss pending cases before oral argument.' We asked Chief Justice Kelly about whether there is communication about cases before argument, and she explained that although the Justices do not meet before oral argument to discuss any given case, each case is discussed at least once before leave is granted and may be the subject of internal memoranda among the justices.

OCJ Blog:' ' Is it true that the justices never discuss a case amongst themselves before the argument'

CJ Kelly:' You realize we always discuss them many times in the' sense that by the time they get to oral argument they' will have gone through probably a number of conferences. ' The initial conference after the case comes in on' application, and then sometimes a whole series of' conferences before the decision is made whether to grant leave.' Now maybe from the time the decision to grant is made until oral argument there may be no group' discussion on it at all. ' Usually there's no discussion' just before oral argument on the cases among the seven of us.' ' ' '

OCJ Blog:' You referenced a moment ago that there are memos that' pass between the justices before oral argument.

CJ Kelly:' ' ' Right.

OCJ Blog:' What's typically contained in those memos, if I may ask'

CJ Kelly:' Sure, you can.' By all means.' I think that's' appropriate.' It's a huge variety of things.' For' example, I or another justice might write the others' saying, "I really think that we should give this case' special attention because it raises issue X and this is' why that issue is deserving of our attention at this' time."' Now that might be the kind of memo that would go' out when we're first looking at the case after the' application has been submitted to us.' And then later on as we're preparing the case for oral argument it's not' unusual for justices to issue a memo saying -- well, for example, before then even it's not unusual for the justices to issue a memo saying, "Here's how I think the' grant order should be worded so as to make sure counsel' knows to treat a certain issue" or "here's an issue I want to make sure is treated and this is the wording I'd like to see."' So that could be another subject in a memo. ' And then later there might be memos before oral argument indicating that a given justice has learned about some' recent ruling by the United States Supreme Court or' another court even, the Court of Appeals, that does' impact the case.

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