The U.S. Supreme Court’s per curiam opinion in the Maryland gerrymandering case, Benisek v. Lamone, did next to nothing to resolve the issue it raised.
But it did do something else useful: It reminded practitioners and others that “in chambers” opinions still matter.
What are “in chambers” opinions? They are individual-justice decisions that rule on applications that are brought not to the entire court but to the justice who oversees the circuit from which the case arises. Stays, extensions of time, injunctions and even requests for bail or habeas relief, are among the issues that have wound up as “in chambers” opinions since they first appeared in the 1830s.
Often in the modern era, these applications are referred to the full court, and some are handled without much of a paper trail. But sometimes, justices write solo opinions to explain for posterity the rationale behind their decision to grant—or deny—the application sought.
That is what happened in the two chambers opinions that were cited in the Benisek decision. The court was making the point that the Republican plaintiffs who challenged the redistricting of Maryland’s sixth district had waited too long—six years—before seeking a preliminary injunction to halt use of the map in elections.
The justices cited Fishman v. Schaffer, a 1976 Thurgood Marshall chambers opinion and Lucas v. Townsend, a 1988 Anthony Kennedy opinion, as precedent for the proposition that “in election cases as elsewhere,” a party seeking a preliminary injunction “must generally show reasonable diligence.”
The Marshall opinion denied an injunction aimed at placing Communist Party candidates on the Connecticut ballot, and Kennedy’s allowed an injunction to halt a Georgia referendum under the Voting Rights Act.
The appellees in Benisek cited the Fishman decision in their brief but made no mention of Kennedy’s Lucas decision. Does that mean that Kennedy, who is most likely to remember his own chambers opinion, wrote the unsigned Benisek decision? We may never know.
The take-away: The court reached out to these off-the-beaten-track decisions to bolster the main point of its decision. “In chambers” opinions should not be ignored.
That said, they are a vanishing form of Supreme Court decision-making. Chambers opinions used to be common. In 1900, a lawyer with an application to take care of would be handed a card by the clerk of the court with the home address of all the justices, and the lawyer would go to the right justice’s residence to seek relief. More recently, the late Chief Justice William Rehnquist wrote more than 100 “in chambers” opinions during his tenure.
But the court’s website lists only three chambers opinions since 2014. “You used to get six, eight, 10 a term at one point,” said Ira Matetsky, partner at Ganfer & Shore in New York, an aficionado of the court’s “in chambers” opinions. “I don’t think they’re taking the trouble to write them.” He also said that chambers opinions are rarely cited—on average, once a year.
Another reason for the decline in such opinions, Matetsky said, is that with modern technology, applications can be referred to the entire court, no matter where the justices are. But before the internet, a justice during recess “didn’t have the option of saying ‘I shouldn’t decide this by myself, let’s let the full court decide,’ unless he wanted to either mail all the other justices and wait a couple of weeks, or wait until the end of September when they were all together.”
Matetsky is editor of the Journal of In-Chambers Practice, affiliated with Green Bag Press, which has been active in compiling as many “in chambers” opinions as possible—a difficult task, because many older ones resided in the justices’ own papers.
This genre of opinion has a rich history. Cynthia Rapp, then a lawyer in the court clerk’s office, put together the first internal compilation of “in chambers” opinions in 2001, which was later published by Green Bag for a broader audience. In an introduction, Rapp reproduced a dramatic in-chambers opinion by Justice Joseph Bradley in 1882, denying habeas relief for Charles Guiteau, who assassinated President James Garfield.
Rapp also recounted the time in August 1970 when two lawyers hiked 6 miles in the woods to make their case for an “in chambers” judgment from Justice William O. Douglas, who was camping nearby. After hearing their argument, Douglas pointed to a tree stump and told the lawyers to expect his decision there the next day. The lawyers returned and retrieved Douglas’s handwritten, one-paragraph “in-chambers” decision in Dexter v. Schrunk. Douglas denied their request.