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Book Review
Secrets of the Kentucky Supreme Court
D. Scott Furkin
After 31 years in the judiciary, the last 24 as a member
of the state’s highest court, retired Justice Donald
C. Wintersheimer knows as much as anyone about
Kentucky law and the personalities who shaped it over the
last three decades. He shares much—but not too much—of
what he learned in a new memoir, Secrets of the Kentucky
Supreme Court (Adams Avenue Books), self-published
earlier this year.
In keeping with the character of Justice Wintersheimer—
highly regarded for his integrity, gentility and discretion—
there are no insider accounts of dialectical dustups between
his colleagues or ribald revelations about their personal
peccadillos. He surely could have written of these, but
then the book would have to be entitled Dirty Secrets of
the Kentucky Supreme Court.
Perhaps the closest Justice Wintersheimer comes to expose´
is his retelling of an incident that occurred in 1994
when the Supreme Court traveled to northern Kentucky
for oral arguments at the Chase College of Law. After one
argument, a Catholic nun who had been in the audience
approached him and mentioned that she thought several
of the justices behaved rudely by frequently talking
amongst themselves while the lawyers were addressing
the court. “This little episode highlights one of my pet
peeves with some of my colleagues, most of whom were
on the left side of the bench as you faced it,” he writes.
“Talking among members of the court during argument
is just that—rude.” True to form, Justice Wintersheimer doesn’t name names, but
court-watchers familiar with the court’s makeup at that time can deduce the offenders’ identities.
The largest portion of the book is devoted to Justice Wintersheimer’s reflections on the many
published opinions he authored during his long career on the high bench. Summarized are
nearly 700 cases decided by the Supreme Court between 1983–2006 in which he either wrote
a majority, concurring or dissenting opinion. Because a number of the most significant decisions
rendered by the court during that time are referenced, it is compelling, albeit somewhat
tedious, reading for anyone interested in the development of modern Kentucky case law.
The book gives a glimpse of behind-the-scenes judicial operations—things like how case assignments
are made, how preliminary decisions are reached in conference room discussions
immediately following oral arguments and how final votes are tallied after draft opinions have
been circulated amongst the justices.
“The daily activities of the Court are not well known because in some ways the Court does
operate out of the public spotlight,” notes Justice Wintersheimer. “Certainly most of our work
occurs in the reading, research and writing in our own chambers or offices.”
There are also some interesting insights into the court’s processes. For example, Justice
Wintersheimer points out that only about 15 percent of all discretionary review motions
filed in the Supreme Court are granted with the remaining 85 percent being denied. He goes
on to observe that “once a case is granted review, the percentages are almost reversed in
that 85 percent of the grants ultimately result in reversal, and only 15 percent of the original
decisions are affirmed.”
The most enjoyable parts of the book are those that reveal something of the personalities of the
jurists with whom Justice Wintersheimer served over the years. There are several references
to the late Justice Charles M. Leibson, with whom he enjoyed a cordial relationship despite the
fact that they frequently clashed over legal and constitutional issues. Justice Wintersheimer
writes that he once suffered mysterious pains which led to his being hospitalized in Frankfort
for several days while the court was in session. “Other than my wife and daughter, the only
visitor I had was Justice Leibson,” he recalls.
Anyone enticed by the title to expect a “tell all” tome will be disappointed
by this book. However, those interested in what the state’s highest court
was up to as a new millennium dawned will find it a worthwhile read.
As Justice Wintersheimer aptly notes in the conclusion: “(A)lthough there
is some mystery surrounding the Kentucky Supreme Court, the real secret
is that there is just a lot of hard work.”
D. Scott Furkin is the Executive Director of the Louisville Bar Association. •
www. loubar.org October 2010
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