A look a high court’s opinion-crafting process

Published 12:00 am Tuesday, April 9, 2013

This is an excerpt from “The Party Line” political blog at www.wfae.org, written by Dr. Michael Bitzer, professor of political science and history at Catawba College.

So now that the briefs and oral arguments are filed in the same-sex marriage cases with the U.S. Supreme Court — now what?
As probably one of the least transparent institutions of our government, the court’s decision-making process is left solely to the nine members of the high court. But we do know, from the research on judicial politics in political science, that this period between the court’s public arguments and the release of a decision (expected in late June) can be just as crucial as any public discussion.
Typically at the end of a week of oral arguments, the justices will gather in the court’s conference room to deliberate on the cases heard that week.
The chief justice leads the discussion and moves the deliberation along from justice to justice. Each associate justice has the opportunity to present their perspective. No other official, be it a clerk or staff member of the court, is allowed in the room during their deliberations.
Following their discussions, the justices take their votes (if not already determined by their discussions). This is just the opening stage of the process, though, in that whichever side gains the critical number of votes early on (five in the case of nine justices), the real process of voting comes with the opinion writing.
This process of opinion writing turns into a critical component of negotiations and deliberations on paper between the various justices. Based on some “tea-leave readings” by some commentators, the DOMA case appears to have at least five members of the court (the four more liberal justices — Ginsburg, Breyer, Sotomayor and Kagan — joined by the “swing” justice, Kennedy) on striking down the federal law.
California’s Proposition 8 case appears to be truly up in the air as to how the court will decide.
One other critical facet is the role of the chief justice in the opinion-writing stage. If Chief Justice Roberts is in the majority, the chief has the option of assigning a justice to write an opinion for the majority, or could assign the opinion to himself.
This could mean that if the chief justice wants to control who writes the opinion, he would vote with the liberals and could assign it to Kennedy, thereby getting potentially a more moderate decision than the four liberals would want. If Roberts isn’t in the majority, then the senior associate justice in the majority would control the opinion assignment, and that’s Anthony Kennedy.
During the opinion-writing stage, justices send their drafts back and forth, seeking comments and suggestions. Sometimes justices can change their votes during this stage, moving from the minority to the majority if there are accommodations made to include their viewpoints.
Other times, the “majority” opinion can be badly splintered across the justices, with some justices supporting different sections of the opinion (what some law students call an “Excel” opinion, because you need a spreadsheet to keep up with who is in the majority at what point in the opinion).
This can create a coalition of justices supporting different parts under different judicial reasonings.
But pointing back to the oral arguments discussion and the eventual opinion released, things can change dramatically, as in the case of Chief Justice Roberts — usually associated with the more conservative justices—— who spared Obamacare from being ruled unconstitutional.
The Affordable Care Act decision, in which it appeared to be a 4-1-4 ruling, aparently came about due to Chief Justice Roberts apparently switching his vote during the opinion-crafting stage.
This process of negotiating and bargaining during the opinion writing stage can be one of the most influential components to the eventual decision by the Supreme Court, but one that is often hidden from public view.
And now the country waits to hear the high court’s ruling and reasoning.