After the presentation of the oral arguments before the Supreme Court, the Justices convene on Fridays for closed conference. Within the meeting, the Justices, by seniority, vocalize their viewpoints on the case, and a tentative vote is taken to indicate support for either side. As we learned reading “Storm Center” by O’Brien, many factors, and especially public opinion, affect how the Justices vote, and how their persuade each other to reach a decision. Stare decisis, political ideology, strategy, and the power to implement their ruling all weigh in on each court decision. After the Friday conference, opinions are written to express to the Justice’s ideas on paper, and secondly, to build a consensus by cumulative drafts. Opinions can change the minds of other Justices, and is it especially important when trying to marshal a majority. Specifically, there are five main types of opinion. First, the majority opinion, authored by a Justice chosen by the Chief Justice (who sometimes chooses to write the opinion himself), represents the view of the five, six, seven, eight, or even nine Justices that concur (sometimes four in cases of when a Justice has recused himself). This opinion represents the holding of the court and works to shape public policy by ruling laws unconstitutional or mandating new laws. A larger and stronger majority means that the legal decision has more support, and thus more importance as a precedent that will be difficult to overturn in the future. For this reason, a Justice or attorney will often try to get a unanimous decision to ensure the strength and potency of the ruling. Brown I & II and Gideon both exemplify this reasoning; in order for the court to effectively mandate nation-wide changes and muster support such as ending segregation or incorporating the Sixth Amendment, no dissents could be tolerated. Secondly, a Justice can write a concurring decision which signifies he or she agrees with the verdict, but not the reasons why. These written statements add to the force of the majority decision but cannot be cited as force of law and stress a different aspect of the law that may even signify that a certain Justice may be open to further “test cases” in an area of legislation. Plurality opinions, written by three or four Justices, often accompany a majority and concurring decisions. Dissenting opinions, written by the four, three, two, or one Justices on the “losing” side are assigned by the most senior member of the minority. These opinions are vitally important to the lifeblood of the court, for they provide details on how the decision was reached, as well as resurface in later court cases when an issue reappears, such as Justice Harlan’s dissent in Plessy v. Ferguson that would be revived in Brown. Lastly, per curiam opinions are issuances of decision by the court as a whole, without any one Justice taking authorship.
In an actual Supreme Court case, the nine justices hear briefs (information, facts, and statements about the case) and then hear arguments from each lawyer—usually for no more than 30 minutes. Because the U.S. government is a plaintiff or defendant to about half of the cases that the Supreme Court hears, the U.S. solicitor general (the 3rd-ranking member of the Department of Justice) often appears. He approves every case the gov’t presents to the Court and decides what cases the government appeals from the lower courts. Sometimes, amicus curiae may be filed as a brief from an interested but not directly affected third party or group, but the Court must first grant permission for these briefs to be filed. Justices also consult legal periodicals like the Harvard Law Review and the Yale Law Journal (thus letting outside sources influence decisions), and on Fridays, they retire to the conference room, where they secretly deliberate, with the each judge giving his opinions in order of seniority and then the judges voting in order of reverse-seniority. A majority is needed for a decision, and in ties, the lower court’s decision stands. The Court also traditionally issues an opinion explaining its rulings (if it’s short and unsigned, it’s called a per curiam opinion) in one of three forms. An opinion of the Court explains the winning side’s views. A concurring opinion explains the views of a member of the winning side who chose that side for different reasons. A dissenting opinion explains the views of the losing side. Justices often vote similarly, and there are some rather clear voting blocs that arise. In the 1970s/80s, there were often three such blocs—a liberal/activist bloc, a conservative/strict-constructionist bloc, and a swing bloc (the liberal bloc was usually the minority, but it sometimes got enough votes from the swing bloc to win its way). Today, the Court remains deeply divided, with its justices voting differently depending on the case or subject matter. Of course, justices often do agree because many cases don’t have a liberal or conservative side; besides, what should count is the quality of the judges’ reasoning, not politics.
After the presentation of the oral arguments before the Supreme Court, the Justices convene on Fridays for closed conference. Within the meeting, the Justices, by seniority, vocalize their viewpoints on the case, and a tentative vote is taken to indicate support for either side. As we learned reading “Storm Center” by O’Brien, many factors, and especially public opinion, affect how the Justices vote, and how their persuade each other to reach a decision. Stare decisis, political ideology, strategy, and the power to implement their ruling all weigh in on each court decision. After the Friday conference, opinions are written to express to the Justice’s ideas on paper, and secondly, to build a consensus by cumulative drafts. Opinions can change the minds of other Justices, and is it especially important when trying to marshal a majority. Specifically, there are five main types of opinion. First, the majority opinion, authored by a Justice chosen by the Chief Justice (who sometimes chooses to write the opinion himself), represents the view of the five, six, seven, eight, or even nine Justices that concur (sometimes four in cases of when a Justice has recused himself). This opinion represents the holding of the court and works to shape public policy by ruling laws unconstitutional or mandating new laws. A larger and stronger majority means that the legal decision has more support, and thus more importance as a precedent that will be difficult to overturn in the future. For this reason, a Justice or attorney will often try to get a unanimous decision to ensure the strength and potency of the ruling. Brown I & II and Gideon both exemplify this reasoning; in order for the court to effectively mandate nation-wide changes and muster support such as ending segregation or incorporating the Sixth Amendment, no dissents could be tolerated. Secondly, a Justice can write a concurring decision which signifies he or she agrees with the verdict, but not the reasons why. These written statements add to the force of the majority decision but cannot be cited as force of law and stress a different aspect of the law that may even signify that a certain Justice may be open to further “test cases” in an area of legislation. Plurality opinions, written by three or four Justices, often accompany a majority and concurring decisions. Dissenting opinions, written by the four, three, two, or one Justices on the “losing” side are assigned by the most senior member of the minority. These opinions are vitally important to the lifeblood of the court, for they provide details on how the decision was reached, as well as resurface in later court cases when an issue reappears, such as Justice Harlan’s dissent in Plessy v. Ferguson that would be revived in Brown. Lastly, per curiam opinions are issuances of decision by the court as a whole, without any one Justice taking authorship.
ReplyDeleteIn an actual Supreme Court case, the nine justices hear briefs (information, facts, and statements about the case) and then hear arguments from each lawyer—usually for no more than 30 minutes. Because the U.S. government is a plaintiff or defendant to about half of the cases that the Supreme Court hears, the U.S. solicitor general (the 3rd-ranking member of the Department of Justice) often appears. He approves every case the gov’t presents to the Court and decides what cases the government appeals from the lower courts. Sometimes, amicus curiae may be filed as a brief from an interested but not directly affected third party or group, but the Court must first grant permission for these briefs to be filed. Justices also consult legal periodicals like the Harvard Law Review and the Yale Law Journal (thus letting outside sources influence decisions), and on Fridays, they retire to the conference room, where they secretly deliberate, with the each judge giving his opinions in order of seniority and then the judges voting in order of reverse-seniority. A majority is needed for a decision, and in ties, the lower court’s decision stands. The Court also traditionally issues an opinion explaining its rulings (if it’s short and unsigned, it’s called a per curiam opinion) in one of three forms. An opinion of the Court explains the winning side’s views. A concurring opinion explains the views of a member of the winning side who chose that side for different reasons. A dissenting opinion explains the views of the losing side. Justices often vote similarly, and there are some rather clear voting blocs that arise. In the 1970s/80s, there were often three such blocs—a liberal/activist bloc, a conservative/strict-constructionist bloc, and a swing bloc (the liberal bloc was usually the minority, but it sometimes got enough votes from the swing bloc to win its way). Today, the Court remains deeply divided, with its justices voting differently depending on the case or subject matter. Of course, justices often do agree because many cases don’t have a liberal or conservative side; besides, what should count is the quality of the judges’ reasoning, not politics.
ReplyDeleteSometimes opinions change during reviews of drafts.
ReplyDeleteDecisions of the Supreme Court become public policy for the entire United States.