Schlesinger v. Holtzman

In issuing his decision, Justice Marshall wrote on behalf of the other seven concurring justices with whom he communicated that day. Marshall, noting that the court of appeals had scheduled a hearing on the case for 8 August, wished to not insert the Court in the dispute at that time and reversed Douglas's order. Marshall reissued the stay against the district court's original injunction stopping the bombing.

Douglas, being the lone dissenter, wrote that though he disagreed with the Court's action regarding the bombing issue, his concern was even greater over the manner in which the Court overruled his decision. Douglas pointed out that a single justice has legal authority to issue stays during a recess, but another justice does not have legal authority to reverse that stay once granted. Douglas also noted the Court did not have legal authority to decide cases unless at least six justices were present. He asserted telephone calls did not legally serve the same purpose as the justices being in a single location to study briefs and exchange views. Douglas wrote, "A Gallup Poll type of inquiry of widely scattered Justices" was contrary not only to law that requires a quorum of six justices to be present, but to the principles of the Court as "a deliberative body that acts only on reasoned bases after full consideration." In Rosenburg v. United States, the Court had determined that it was "necessary and proper to meet together in Special Term before stays granted by an individual Justice out of Term could be overturned."