Not the decision upon which this diary is focused
Thanks to the intrepid reporting in The New York Times last week, we got a rare and unprecedented look into the working of SCOTUS vis-à-vis the Dobbs decision. This glimpse into the inner workings of the Court kind of confirmed for me something I had been thinking about for a long time: how the Justices decide who will write the controlling opinion to be released. I wrote a short reply to a reply to a comment I made last week in Joan McCarter’s diary on this subject. My reply was delayed because I was out of town for the weekend. This diary is an expansion on that comment.
I think most people (maybe I am wrong) have the idea the Justices go into their first conference and have some sort of hand raising style vote on specific cases and then the Chief or senior member of the majority picks one of the Justices or themselves to write the controlling opinion. Honestly, this never made any sense to me. Considering how long most opinions are, how would any of the Justices know which way they were going to vote without having an idea what the draft opinion will look like?
Is it possible in cases where there is a strong 7 or more vote majority, the assignment might be made before draft opinions are circulated? One could make the case for this but I think it is likely rare or not at all how it works. I also believe the word assign is a misnomer is the decision of who will present/write the controlling opinion. Chosen sounds more plausible as in a particular Justice’s opinion is chosen to be the controlling opinion. Anyone who reads SCOTUSblog knows in the Court has moved to a more equal distribution of controlling opinion authors. While this may give more credence to the vote and assign theory, I still think they wait until opinions are circulated before the controlling opinion is chosen. It is likely after the decision is known a Justice in the majority who hasn’t written enough opinions will be asked to take the controlling opinion and rework it in their voice (my theory).
What was revealed in the Times article makes significantly more sense to me. I won’t ever claim to know what goes on during the Justices’ private conferences, but I think it has little to do with the actual outcomes of cases. Instead, I believe the Justices begin to draft opinions after a case is heard during oral arguments. These draft opinions are sent around to the other Justices for them to sign onto or not. In some cases, multiple potential controlling opinions are sent around; in others, like the Dobbs case, only one potential controlling opinion is sent out and the other votes in the majority sign onto that opinion. This allows for more jockeying to sway votes to sign onto an opinion as opinions can be edited to bring over additional votes. The opening three paragraphs of the article are what convinces me this is how SCOTUS actually operates in its decision making function.
On Feb. 10 last year, Justice Samuel A. Alito Jr. showed his eight colleagues how he intended to uproot the constitutional right to abortion.
At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.
But this time, despite the document’s length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.
From this, it makes it clear Roberts and Breyer’s attempts to move a vote would be an exercise in futility. Why the draft opinion was leaked when it seems clear the votes were locked in no matter the attempts by Breyer and Roberts remains a mystery. It does however make it clear to me it had to have been someone from the majority 5. Breyer and Roberts, if they thought they were making inroads, would have no reason to leak. Sotomayor and Kagan would likely have been resigned to fact they were seeing woman once again being subjected to becoming second class citizens and losing bodily autonomy in much of country. Unless they thought mass protests would sway a vote, a notion I highly doubt these two intelligent women would believe, they had no reason to leak. That only leaves the majority 5 to be the source of the leak.
Back to the premise of the diary, the other reason I believe opinions are assigned this way is how long most opinions take to be released. True, most of the consequential decisions are released at the end of the term in the hopes that the reactions will be more muted considering multiple opinions are released in quick succession. Still, having to wait for draft opinions to be written so other Justices can sign on or not then be altered to solidify votes makes my thoughts on how the writer of an opinion is decided makes so much more sense than the Chief or senior Justice just picking someone to write an opinion before any opinions have been written.
While I would love to have my theory confirmed explicitly, this article is as close as I am going to get. Thoughts?
Have a great holiday everyone!
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From your MIA diarist (I’m at a hockey game watching McJesus play my Isles):
While I would never leave a congressional without a candidate, leftangler paraphrases one of the best movie quotes stating what how most NYers feel about Staaten Eylandt. (Figure it out lol).
From inkstained wrench:
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Captain Frogbert reply to coolspring on
diary by LimitReached
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Christian fundamentalists are taking the Lord's name in vanity that they can cut-and-paste the words in the Bible and reinterpret any of Christ's teachings.
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