The Supreme Court's handling earlier this month of the fast-moving Chrysler sale in bankruptcy continues to yield glimpses into unfamiliar corners of Supreme Court practices and traditions.
You'll recall that several challenges to the sale, brought by consumer groups and pension funds that claimed they would be harmed by the sale of Chrysler to Fiat and others, went before Justice Ruth Bader Ginsburg in her role as circuit justice. In that role, which we explored in the second item of this article this week, she referred the stay applications to the full court. After a few suspenseful days of consideration, the Court issued an unsigned per curiam opinion denying the stay and explaining why.
The opinion quoted from a recent and never-before-cited precedent that was no doubt unfamiliar to virtually all Court-watchers: Conkright v. Frommert, available here. Why is it so obscure? It was written by Justice Ginsburg in April as an "in-chambers" opinion, a sort of one-justice ruling that is rare and hard to categorize -- so much so that until 40 years ago, they were not included in the U.S. Reports. Ginsburg's in-chamber opinion in April was the first written by any justice in two years.
Justices usually grant or deny stay applications or other emergency motions without explanation, but occasionally justices feel compelled to lay out their reasoning for the guidance of the parties and future litigants. The opinions are not circulated to other justices. In Conkright, a still-pending dispute over Xerox Corporation's pension plan, Ginsburg spelled out the standards she uses in granting or denying stays.
Ira Matetsky, a Supreme Court history buff who has written extensively on in-chambers opinions, said it is "relatively rare for the Court to cite an in-chambers opinion." Matetsky, a partner in the New York firm Ganfer & Shore, said "the Court may not have had a recent precedent of the full court to cite" on the standards for handling stays, so decided to use Ginsburg's in-chambers opinion. Also, even though the Chrysler opinion was unsigned, it's likely that much of the work on it was done by Ginsburg and her clerks -- who would have had the Conkright in-chambers opinion fresh in their minds.
A decade ago, now-deputy Supreme Court clerk Cynthia Rapp began gathering in-chambers opinions from a range of traditional and out-of-the-way sources, and in 2004 they were compiled and published as a three-volume set by Green Bag Press. In a foreword, she described their important role in death penalty and other cases.
In one of the more colorful episodes, Rapp described how two lawyers, seeking an injunction in a First Amendment case in August,1970, trudged six miles into the woods to make their case in person to Justice William O. Douglas who was camping nearby. After hearing their argument, Douglas pointed to a tree stump and told the lawyers they could find his decision there the next day. As promised, the lawyers returned and retrieved Douglas' handwritten, one-paragraph "in-chambers" decision in Dexter v. Schrunk from the stump. The request was denied.
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