As a student, I hated \u201cgroup\u201d projects. We always got a \u201cgroup\u201d grade, so if you were worried about your grades, you did all the work in the project. Those students who weren\u2019t concerned, didn\u2019t bother to work. In a four-person group, there was always the \u201cidea\u201d person, the \u201cI\u2019ll be secretary\u201d person, the \u201cgo for the ride\u201d person, and then one person is did all the real work. <\/p>\n\n\n\n
This wasn\u2019t 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 \u201cgroup\u201d projects, but I always included an individual grade as well. Sure your group could get an \u201cA\u201d, but I monitored what was going on in the group. If you were going \u201cfor the ride\u201d your grade would reflect that too.<\/p>\n\n\n\n
When you think of the Supreme Court, think of a nine-person \u201cgroup project\u201d.\u00a0\u00a0It\u2019s more like the college groups, and all nine are \u201cidea\u201d people trying to get their point across.\u00a0\u00a0So here\u2019s how the Court is structured to get all that done.<\/p>\n\n\n\n
For the Court to even listen to arguments on most issues, four Justices must agree to \u201chear\u201d the case.\u00a0\u00a0At that point, the attorneys on both sides prepare\u00a0\u00a0to make their \u201ccase\u201d to all nine Justices. bThey prepare written briefs, sometimes running to hundreds of pages, and oral presentations to the Court.\u00a0\u00a0They have\u00a0\u00a0thirty minutes to make their point, but that time period is always interrupted by questions by the various Justices.\u00a0\u00a0Sometimes the questions are real inquiries about the law, or the thinking behind the case.\u00a0\u00a0Sometimes the questions are directed to making other Justices think about a particular position.\u00a0\u00a0And sometimes a Justice is looking to highlight a particularly weak position taken by the attorney.<\/p>\n\n\n\n
In addition, the Court receives \u201cAmicus Curiae\u201d briefs, \u201cfriends of the Court\u201d who weigh in on one side or the other.\u00a0\u00a0These are parties with interests in the outcome of the case. They are given the opportunity to put their legal \u201ctwo-cents\u201d into the discussion.\u00a0\u00a0<\/p>\n\n\n\n
The day or so after oral arguments, the nine Justices meet to take a preliminary vote on the case.\u00a0\u00a0This 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.\u00a0\u00a0The Justice who writes the decision determinesthe law of the United States. It establishes precedence for the legal system.\u00a0<\/p>\n\n\n\n
So the Justices vote, with a 5 to 4 majority controlling the decision.\u00a0\u00a0If John Roberts, the Chief Justice, is in the majority, then he can determine who writes the opinion.\u00a0\u00a0It can be himself, or one of the other four or more Justices in the majority.\u00a0\u00a0If Roberts is in the minority, then the Senior Justice on the majority determines who writes the \u201cfirst draft\u201d of thedecision.\u00a0\u00a0<\/p>\n\n\n\n
We know that the Dobbs <\/em>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<\/em>: and Roberts, Breyer, Sotomayor and Kagan to uphold Roe<\/em> (in some form or other). Since Roberts was in the minority, he did not get to assign the opinion. Justice Clarence Thomas did \u2013 and he assigned it to Justice Samuel Alito.<\/p>\n\n\n\n Justice Alito gets the \u201cduty\u201d of writing an opinion that the majority will agree to. That\u2019s an important distinction \u2013 Alito can\u2019t just write anything he wants to be law. He wants five Justices to agree to each point of his opinion. They don\u2019t have to. They can agree with Alito\u2019s conclusions \u2013 the decision itself \u2013 but write their own opinions about how they got there. That\u2019s important to the law. If there\u2019s 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.<\/p>\n\n\n\n But if the majority is split in its reasoning \u2013 with some Justices agreeing to some points but not others and writing their own opinions \u2013 concurring opinions – then the decision doesn\u2019t have the same impact on the law. It decides the one case, Dobbs v Jackson Women\u2019s Health Organization, <\/em>but isn\u2019t as easily applied to other cases.<\/p>\n\n\n\n Justice Alito\u2019s ultimate goal was to have at least five Justices \u201csign-on\u201d to his opinion. <\/p>\n\n\n\n A Supreme Court Justice\u2019s office is like a small law firm. There is the Justice him or herself, then there are four \u201cclerks\u201d. 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 \u201cgroup project\u201d with the Justice, of course, having the final say. That writing process goes on for months.<\/p>\n\n\n\n In the Dobbs <\/em>case, it went on for over two months, from the time Alito was assigned the case, until the \u201cfirst draft\u201d came out in early February. <\/p>\n\n\n\n Once the \u201cfirst draft\u201d is finalized in Alito\u2019s 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\u2019s draft, and instead start the writing process in their own offices, with their own clerks.<\/p>\n\n\n\n And the Justices in the minority, can start writing their \u201cdissents\u201d, explaining why the reasoning in the Alito opinion is wrong. Dissents aren\u2019t \u201clegal\u201d 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\u2019s decision.<\/p>\n\n\n\n This is also where the \u201cbargaining\u201d in the Court begins. In a 5 to 4 preliminary vote, it might be possible for the \u201c4\u201d to shave off one of the \u201c5\u201d and flip the decision. That\u2019s what Chief Justice Roberts (supposedly) is trying to do in this case. So a Roberts\u2019 \u201cdissent\u201d to Alito\u2019s decision might be close enough for one of the \u201c5\u201d to switch, making Roberts\u2019 \u201cdissent\u201d become the majority decision. <\/p>\n\n\n\n And this is all done \u201con paper\u201d. There are no \u201cgroup discussions\u201d, just binders of papers going back and forth between the Justices\u2019 offices, trying to persuade a colleague to take a different position. <\/p>\n\n\n\n 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\u2019s happening. When the United States Supreme Court announces a decision, it\u2019s 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\u2019s why the \u201cbreaking news\u201d of a Supreme Court decision always includes reporters skimming through stacks of paper, trying to find the nuances of the determination, and the dissents.<\/p>\n\n\n\n And that\u2019s 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 \u201cright\u201d to privacy and control of what happens to your body, someone leaked the Alito draft to the world.<\/p>\n\n\n\n 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 \u201c5\u201d can be persuaded to \u201cflip\u201d. Demonstrators in front of Justice Kavanaugh\u2019s home certainly hope so.<\/p>\n\n\n\n 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 \u201c5\u201d hold their position, and not knuckle under to the \u201cpublic pressure\u201d. Of course, that\u2019s exactly what they want those Justices to do, knuckle under to pressure from the pro-life side, not the pro-choice side.<\/p>\n\n\n\n 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\u2019s 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 \u201cbuying time\u201d will only be buying an increase in public pressure from all sides of the argument.<\/p>\n\n\n\n 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 \u201cthe law\u201d will muddy the Court\u2019s reputation, and the law. <\/p>\n\n\n\n Maybe that\u2019s already happened.<\/p>\n","protected":false},"excerpt":{"rendered":"The Process \u2013 Part One<\/h3>\n\n\n\n
The Process \u2013 Part Two<\/h3>\n\n\n\n
The Process \u2013 Part Three<\/h3>\n\n\n\n
Benefits<\/h3>\n\n\n\n