FYI - this is a good synopsis of the process by which the Justices reach a majority and write the opinions.
en.wikipedia.org
The conference: assignment of opinions
At the end of a week in which the Court has heard oral arguments, the Justices hold a conference to discuss the cases and vote on any new petitions of certiorari. The Justices discuss the points of law at issue in the cases. No clerks are permitted to be present, which would make it exceedingly difficult for a justice without a firm grasp of the matters at hand to participate. [13] At this conference, each justice - in order from most to least senior - states the basis on which he or she would decide the case, and a preliminary vote is taken. Justice Scalia has professed frustration that there is little substantive discussion, [14] while former Chief Justice Rehnquist wrote that this makes the conference more efficient. [15] The votes are tallied, and the responsibility for writing the opinion in the case is assigned to one of the justices; the most senior Justice voting in the majority (which is the Chief Justice if he is in the majority) makes the assignment, and can assign the responsibility to him or her self.
Circulating draft opinions and changing of views The justice writing the opinion for the court will produce and circulate a draft opinion to the other justices. Each justice's law clerks may be involved in this phase. In today's Supreme Court, only Justice Antonin Scalia regularly writes his own first drafts. [16] Once the draft opinion has been reviewed, the remaining Justices may recommend changes to the opinion. Whether these changes are accommodated depends on the legal philosophy of the drafters as well as on how strong a majority the opinion garnered at conference. A justice may instead simply join the opinion at that point without comment.
Votes at conference are preliminary; while opinions are being circulated, it is not unheard of for a justice to change sides. A justice may be swayed by the persuasiveness (or lack thereof) of the opinion or dissent, or as a result of reflection and discussion on the points of law at issue.
The evolution of the justices' views during the circulation of draft opinions can change the outcome of the case; an opinion that begins as a majority opinion can become a dissenting opinion, and vice versa. At the conference for Planned Parenthood v. Casey, Justice Kennedy is said to have initially voted with Chief Justice Rehnquist, but then changed his mind, feeling unable to join Rehnquist's draft opinion. [17] While working for the Justice Department, present-day Chief Justice John Roberts - a former Rehnquist law clerk - wrote an analysis of Wallace v. Jaffree [18] in which he indicated his belief (based on the length and structure) that Rehnquist's dissent had started out as an opinion for the court, but lost its majority; similar speculation is often heard of Justice O'Connor's dissent in Kelo v. New London. [19] Justice Kennedy is known within the Court for changing his mind subsequent to the conference, and Justice Thomas is known for having the tendency to lose a majority. [20] Justices may change sides at any time prior to the handing down of the Court's opinion. Generally, the Court's decision is the opinion which a majority (five) of justices have joined. In rare instances, the Court will issue a plurality opinion in which four or fewer Justices agree on one opinion, but the others are so fractured that they cannot agree on a position. In this circumstance, in order to determine what the decision is lawyers and judges will analyze the opinions to determine on which points a majority agrees. An example of a case decided by a plurality opinion is Hamdi v. Rumsfeld.
A justice voting with the majority may write a concurring opinion; this is an opinion where the justice agrees with the majority holding itself, but where he or she wishes to express views on the legal elements of the case that are not encompassed in the majority opinion. Justices who do not agree with the decision made by the majority may also submit dissenting opinions, which may give alternative legal viewpoints. Dissenting opinions carry no legal weight or precedent, but they can set the argument for future cases. John Marshall Harlan's dissent in Plessy v Ferguson set down for the majority opinion later in Brown v. Board of Education.
After granting a writ of certiorari and accepting a case for review, the justices may decide against further review of the case. For example, the Court may feel the case presented during oral arguments did not present the constitutional issues in a clear-cut way, and that adjudication of these issues is better deferred until a suitable case comes before the court. In this event the writ of certiorari is "dismissed as improvidently granted" — saying, in effect that the Court should not have accepted the case. As with the granting or denial of cert, this dismissal is customarily made using a simple per curiam decision without explanation.
Customarily, justices who were not seated at the time oral arguments were heard by the Supreme Court do not participate in the formulation of an opinion. Likewise, a justice leaving the Court prior to the handing down of an opinion does not take part in the Court's opinion. Should the composition of the Court materially affect the outcome of a pending case, the justices will likely elect to reschedule the case for rehearing.
Tied votes and lack of quorum If not all of the nine justices vote on a case, or the Court has a vacancy, then there is the possibility of a tied vote. If this occurs, then the decision of the court below is affirmed, but the case is not considered to be binding precedent. The effect is a return to the status quo ante. No opinions are issued in such a case, only the one-sentence announcement that "[t]he judgment is affirmed by an equally divided Court."
A quorum of justices to hear and decide a case is six. If, through recusals or vacancies, fewer than six justices can participate in a case, and a majority of qualified justices determines that the case cannot be heard in the next term, then the decision of the court below is affirmed as if the Court had been equally divided on the case. An exception exists when this situation arises in one of the now-rare cases brought directly to the Supreme Court on appeal from a United States District Court; in this situation, the case is referred to the U.S. Court of Appeals for the corresponding circuit for a final decision there by either the Court of Appeals sitting en banc, or a panel consisting of the three most senior active circuit judges. [21]
Announcement of opinions Throughout the term, but mostly during the last months of the term—May, June, and, if necessary, July—the Court announces its opinions. The decision of the Court is subsequently published, first as a slip opinion, and subsequently in the United States Reports. In recent years, opinions have been available on the Supreme Court's website and other legal websites on the morning they are announced.
The opinion of the Court is usually signed by the author; occasionally, the Supreme Court may issue an unsigned opinion per curiam. The practice of issuing a single opinion of the Court was initiated during the tenure of Chief Justice John Marshall during the early nineteenth century. This custom replaced the previous practice under which each Justice, whether in the majority or the minority, issued a separate opinion. The older practice is still followed by appellate courts in many common law jurisdictions outside the United States. |
