Behind the scenes at the Temple of Justice

Associated Press

OLYMPIA — To the casual observer, the deliberations of the Washington Supreme Court can seem abrupt, arbitrary and occasionally bizarre.

The nine justices appear suddenly in their soaring chamber, grill lawyers with rapid-fire questions for a few minutes, then disappear just as quickly. Months later, rulings emerge.

But in between stretch months of vigorous argument, friendly persuasion, writing and rewriting that often sets the course of the state’s policies and politics.

The state Supreme Court doesn’t get much ink, except on Thursdays when it releases rulings. Most of the time, its nine members are cloistered in the Temple of Justice, their pillared stronghold facing the state Capitol.

The justices invite lawyers to argue about 135 cases every year in a ritual that can seem like stepping into a running chain saw.

Attorneys step forward with a prepared argument, but questions rain down from the justices almost immediately. Some lawyers spend their entire time — 20 or 30 minutes — fending off pointed legal barbs.

"I agonized for weeks," attorney Suzanne Lee Elliott said of her first appearance in 1984, a case she won. "It’s gotten easier and less intimidating, but it’s still a very nerve-racking process. You’re looking up there at nine different personalities and nine different views of where the case should be going."

The judges pepper lawyers with questions because they’re already filled in on the basic framework of the case, which itself was chosen for its importance to some legal principle.

"We’re sort of taking the tip of the iceberg in terms of cases, the more high-visibility cases," Chief Justice Gerry Alexander said.

The justices’ questions often seem harsh, but attorneys say they’re often designed as part of the larger argument within the court.

"What they’re trying to do is get to another justice through you," said Rhys Sterling, who argued before the court recently against the Washington State Patrol’s vehicle impoundment policies.

But subtle sparring aside, attorneys with years of experience at the uncomfortable focus of the court’s attention say they can usually — but not always — get a sense of how they’ve done.

"You can generally come away from the argument and say: ‘I think these two are with me, those two are against me and I don’t have a clue about the other five,’ " said Jim Lobsenz, who’s been arguing before the court for more than 20 years.

When the grilling is over, Alexander bangs the gavel and the justices retreat to their sanctuary to start the real work — deciding who won.

There’s a preliminary vote immediately. The case has already been assigned a "reporting judge," one justice delegated at random to study the case in depth and brief the other eight before the arguments.

Afterward, the same judge makes a recommendation on how the case should be resolved. The other justices ask questions, and the vote proceeds around the table, with the chief justice voting last.

If the reporting judge’s view wins five votes, he or she writes the majority opinion. If there’s dissent, the first justice to disagree writes the minority opinion. If the vote goes against the reporting judge, he or she swaps roles with the dissenter.

But that’s just the beginning.

"The hard part of the job is writing the opinion," Alexander said. "It becomes the law of the state. We have to be very precise."

The reason the initial vote is private and preliminary is because justices often change their minds, swayed by legal reasoning or a change of heart. As judges and their clerks craft the opinions, they look to shear off the other side’s support.

"Opinions do flip," said Phil Talmadge, a former Supreme Court justice. "You thought you had five or six votes and all of a sudden you circulate the opinion and you have three."

Unanimous opinions tend to appear quickly, but cases that divide the court can linger for months as different sides try to tailor stances to attract more votes.

Some justices aren’t averse to sidling down the hall to lobby a colleague to switch sides, Alexander said.

Sometimes justices need prodding to jump off the fence and decide and wait until the last minute to sign one opinion or another.

Once a month the judges meet to review a list of people who are overdue and apply a little peer pressure, Alexander said.

"It’s really a matter of shaming people to get it out the door," Talmadge said.

Alexander hopes the court can clear its caseload between the current term and the next one in September, but concedes it will be difficult because the cases themselves are carefully selected for their importance and sometimes for their difficulty.

Some matters — such as death penalty cases — come before the court automatically.

The justices select others once a month from phonebook sized summaries of petitions, Alexander said.

They look for matters of great import: constitutional challenges to laws passed by initiative or the Legislature, lawsuits against elected state officials, criminal defendants who claim they’ve been denied their rights, cases involving large amounts of public money, and areas of the law that haven’t been examined in many years.

"We’re looking for cases of first impression," Alexander said. "Is this a case where there is no law? We try to keep the law fresh."

Grappling with such things takes time, and even those who have to wait many months for an answer say they don’t really begrudge the time.

"Sometimes time’s an important factor if your client’s in prison," Elliott said. "But they are making law that’s going to govern everybody in the state. So it’s important that they be doing the right thing."

Associated Press