The Unpublished Opinions of the Rehnquist Court

the late Bernard Schwartz

01/1996 · Oxford University Press

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In the last twenty years, the veil of secrecy surrounding the workings of the United States Supreme Court has been lifted. Justice Thurgood Marshall's controversial decision to make his papers available to the public ushered in a new era of openness about the operation of the Court--but not without criticism from Chief Justice William H. Rehnquist. The Unpublished Opinions of the Rehnquist Court provides a behind-the- scenes look at the Supreme Court, showing how changes between the drafts and the Justices' final opinions have created substantial differences in the outcome of the Court's decisions. As with his two previous works The Unpublished Opinions of the Warren Court and the Unpublished Opinions of the Burger Court, author Bernard Schwartz uses private court papers to follow these decisions and explore the key role and responsibility of the Chief Justice. Among the ten cases examined by Schwartz are key abortion cases Hodgson v. Minnesota and Webster v. Reproductive Health Services-- the original draft of which would have virtually overruled Roe v. Wade--as well as a civil rights case, Patterson v. McLean Credit Union. Schwartz considers the draft opinions and explains why the drafts were not issued as the final opinions and dissents in these cases. In particular, he shows what would have happened if the draft opinions had come down as the final opinions. The Unpublished Opinions of the Rehnquist Court serves to clarify and explore the actual operation of the judicial decision-making process. It will be fascinating and informative reading for attorneys, judges, law students, politicians and anyone interested in the mechanics of the nation's highest Court.

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Bernard Schwartz is Professor of Law at the University of Tulsa and Professor Emeritus, New York University.