Group Project
As a student, I hated “group” projects. We always got a “group” grade, so if you were worried about your grades, you did all the work in the project. Those students who weren’t concerned, didn’t bother to work. In a four-person group, there was always the “idea” person, the “I’ll be secretary” person, the “go for the ride” person, and then one person is did all the real work.
This wasn’t always true. Sometimes I got in groups that really took off, with everyone contributing, but that was more in college than public school. When I was teaching, I also assigned “group” projects, but I always included an individual grade as well. Sure your group could get an “A”, but I monitored what was going on in the group. If you were going “for the ride” your grade would reflect that too.
Structure
When you think of the Supreme Court, think of a nine-person “group project”. It’s more like the college groups, and all nine are “idea” people trying to get their point across. So here’s how the Court is structured to get all that done.
For the Court to even listen to arguments on most issues, four Justices must agree to “hear” the case. At that point, the attorneys on both sides prepare to make their “case” to all nine Justices. bThey prepare written briefs, sometimes running to hundreds of pages, and oral presentations to the Court. They have thirty minutes to make their point, but that time period is always interrupted by questions by the various Justices. Sometimes the questions are real inquiries about the law, or the thinking behind the case. Sometimes the questions are directed to making other Justices think about a particular position. And sometimes a Justice is looking to highlight a particularly weak position taken by the attorney.
In addition, the Court receives “Amicus Curiae” briefs, “friends of the Court” who weigh in on one side or the other. These are parties with interests in the outcome of the case. They are given the opportunity to put their legal “two-cents” into the discussion.
Preliminary Decision
The day or so after oral arguments, the nine Justices meet to take a preliminary vote on the case. This is NOT a final decision, but does determine which Justice will have the opportunity to try to write a first draft majority decision for the case. The Justice who writes the decision determinesthe law of the United States. It establishes precedence for the legal system.
So the Justices vote, with a 5 to 4 majority controlling the decision. If John Roberts, the Chief Justice, is in the majority, then he can determine who writes the opinion. It can be himself, or one of the other four or more Justices in the majority. If Roberts is in the minority, then the Senior Justice on the majority determines who writes the “first draft” of thedecision.
We know that the Dobbs Mississippi abortion law case was heard in December, and the preliminary vote was: Thomas, Alito, Gorsuch, Kavanaugh and Barrett to uphold the Mississippi law and overturn Roe v Wade: and Roberts, Breyer, Sotomayor and Kagan to uphold Roe (in some form or other). Since Roberts was in the minority, he did not get to assign the opinion. Justice Clarence Thomas did – and he assigned it to Justice Samuel Alito.
The Process – Part One
Justice Alito gets the “duty” of writing an opinion that the majority will agree to. That’s an important distinction – Alito can’t just write anything he wants to be law. He wants five Justices to agree to each point of his opinion. They don’t have to. They can agree with Alito’s conclusions – the decision itself – but write their own opinions about how they got there. That’s important to the law. If there’s a single opinion that all five (or more) Justices sign onto, then the law is clear about how to apply that decision to other cases.
But if the majority is split in its reasoning – with some Justices agreeing to some points but not others and writing their own opinions – concurring opinions – then the decision doesn’t have the same impact on the law. It decides the one case, Dobbs v Jackson Women’s Health Organization, but isn’t as easily applied to other cases.
Justice Alito’s ultimate goal was to have at least five Justices “sign-on” to his opinion.
A Supreme Court Justice’s office is like a small law firm. There is the Justice him or herself, then there are four “clerks”. The clerks are brilliant lawyers themselves, and the Justice assigns a clerk (or more) to write the opinion. Then the office collaborates on what they wrote, a “group project” with the Justice, of course, having the final say. That writing process goes on for months.
In the Dobbs case, it went on for over two months, from the time Alito was assigned the case, until the “first draft” came out in early February.
The Process – Part Two
Once the “first draft” is finalized in Alito’s office, it is then circulated to the rest of the Justices. Those that voted in the majority at the preliminary conference might sign on. Or they might suggest changes that they need in order to sign on. Or they might decide that they cannot sign onto to Alito’s draft, and instead start the writing process in their own offices, with their own clerks.
And the Justices in the minority, can start writing their “dissents”, explaining why the reasoning in the Alito opinion is wrong. Dissents aren’t “legal” in the sense that they become part of the law. But dissents do become the basis for later attempts to overturn the Alito decision. If, for example, four Justices sign onto a dissent, then future attorneys arguing in front of the Court know where to begin trying to change the impact of Alito’s decision.
This is also where the “bargaining” in the Court begins. In a 5 to 4 preliminary vote, it might be possible for the “4” to shave off one of the “5” and flip the decision. That’s what Chief Justice Roberts (supposedly) is trying to do in this case. So a Roberts’ “dissent” to Alito’s decision might be close enough for one of the “5” to switch, making Roberts’ “dissent” become the majority decision.
And this is all done “on paper”. There are no “group discussions”, just binders of papers going back and forth between the Justices’ offices, trying to persuade a colleague to take a different position.
The Process – Part Three
This goes on for every case the Court determines after hearing arguments. We know what the process is, but we never, ever, get to see the process as it’s happening. When the United States Supreme Court announces a decision, it’s always unknown until the actual announcement is made. At that moment, the written decision (and all of the concurrent and dissenting opinions) are published and handed out to the world. That’s why the “breaking news” of a Supreme Court decision always includes reporters skimming through stacks of paper, trying to find the nuances of the determination, and the dissents.
And that’s what so different about this case. In a decision where the Court is on the cusp of overturning fifty years of precedent, and take away a Court granted Constitutional “right” to privacy and control of what happens to your body, someone leaked the Alito draft to the world.
Benefits
Who would benefit from the Supreme Court process becoming a public spectacle? Well, certainly those who are pro-choice might benefit, as they marshal their supporters in righteous outrage over the loss of a half-century of personal rights. Perhaps enough public pressure can be exerted that one of the “5” can be persuaded to “flip”. Demonstrators in front of Justice Kavanaugh’s home certainly hope so.
But there are benefits for the pro-life side as well. They can claim that a pro-choice proponent released the internal document to the world, violating the sanctity of the Court process. They can demand that the “5” hold their position, and not knuckle under to the “public pressure”. Of course, that’s exactly what they want those Justices to do, knuckle under to pressure from the pro-life side, not the pro-choice side.
Chief Justice Roberts declared that the Court will proceed with the process, and reach a final decision for the end-of-term June announcements. But it’s possible that the Court itself is thrown into such disarray from this complete exposure, that they buy some time by delaying the decision, or even calling for a re-hearing of the case in the fall. But “buying time” will only be buying an increase in public pressure from all sides of the argument.
One thing we know for sure. If the Alito opinion becomes the law of the land, the public disruption will make this crisis look puny. And if the Court rules in some other way, the specter of public and political pressure influencing “the law” will muddy the Court’s reputation, and the law.
Maybe that’s already happened.
