How the Sausage Is Made

Supreme Court decisions aren’t just dashed off, even when the justices know how they’ll vote. It takes time””a lot of it.

Members of the public line up outside the Supreme Court in Washington, Wednesday, April 25, 2012, as the court held a hearing on Arizona's "show me your papers" immigration law .   
National Journal
Margot Sanger-Katz
June 7, 2012, 1 p.m.

Two days after the mara­thon health care ar­gu­ments ended at the Su­preme Court in March, the nine justices met alone in a room and cast their votes in the his­tor­ic case. It would be easy to think that all the hard work was done””the justices had read the briefs, ques­tioned the law­yers, and made up their minds about the case. Which might ex­plain why Wash­ing­ton was abuzz about a ru­mor that the Court would is­sue its judg­ment be­fore Me­mori­al Day.

It didn’t. And it prob­ably won’t is­sue one un­til the term ends in late June.

For the justices, everything is in the writ­ing, and ju­di­cial writ­ing takes time. Policy wonks care about the bot­tom line, but the Court cares about the fu­ture. Choos­ing one line of leg­al reas­on­ing in­stead of an­oth­er can in­flu­ence a spate of fu­ture cases. And the case chal­len­ging the Af­ford­able Care Act con­tains three core is­sues that, de­pend­ing on the de­cision, could have big ef­fects bey­ond health care. “The justices are at­tuned to the fact that these de­cisions will be quoted for years to come, if not dec­ades to come,” said Steven En­gel, a part­ner at the Dech­ert law firm and a former law clerk for Justice An­thony Kennedy.

In the post-ar­gu­ment con­fer­ence, justices are as­signed to write the ma­jor­ity and dis­sent­ing opin­ions. But even a justice who chooses her words care­fully must win over four col­leagues if she wants her writ­ten opin­ion to carry the day. The Court’s tra­di­tion­al dead­line for the cir­cu­la­tion of first drafts is June 1, which means that the justices may just be read­ing the first ver­sion of the ma­jor­ity opin­ion in the case this week. If they don’t like what they read, they’ll make their views known, also in writ­ing. Draft opin­ions and memor­anda are still cir­cu­lated on pa­per, hand de­livered in ma­nila en­vel­opes. The memos are typ­ic­ally ad­dressed to the justices us­ing their first names, ex­cept for the chief justice, who is called Chief, former clerks say.

In cases where most mem­bers of the Court agree, this pro­cess can be fairly stream­lined. But close cases of­ten re­quire more back and forth. Be­cause there’s little wiggle room in the event of a five-justice co­ali­tion, each justice’s com­ments will re­quire de­tailed at­ten­tion, lest they stray from the ma­jor­ity po­s­i­tion. (It’s not clear wheth­er all or part of the de­cision in the health care case will turn out to be 5-4 splits, but many leg­al ana­lysts be­lieve that Kennedy’s vote will be crit­ic­al in de­term­in­ing key is­sues.) It also means the opin­ion must be care­fully con­struc­ted to please the least con­vinced party in the co­ali­tion, which can be tricky. In Mir­anda v. Ari­zona, the 1966 case that forced po­lice to read crim­in­al sus­pects their rights, Justice Wil­li­am Bren­nan sub­mit­ted 21 pages of re­vi­sions to Chief Justice Earl War­ren’s ori­gin­al ma­jor­ity draft. “This will be one of the most im­port­ant opin­ions of our time, and I know that you will want the fullest ex­pres­sion of my views,” he wrote, ac­cord­ing to Storm Cen­ter, a book on the work­ings of the Court by Uni­versity of Vir­gin­ia polit­ic­al sci­ent­ist Dav­id O’Bri­en. Bren­nan’s changes were in­cor­por­ated.

Tom Gold­stein, a law­yer who fre­quently ar­gues be­fore the Court and who pub­lishes the Su­preme Court news site SCOTUS­b­log, said that it’s help­ful to think of the justices as nine sep­ar­ate law firms, each with its own staff and pro­cess. “They have the right to re­view everything and make their own com­ments,” he said.

De­cisions in high-pro­file cases like this one care fre­quently con­tain dis­sents writ­ten for pos­ter­ity. Justices are more likely to write in dis­sent, use rhet­or­ic­al flour­ishes, or provide a de­tailed parade of hor­ribles that will res­ult from the ma­jor­ity’s view. (Some­times, such dis­sents are writ­ten with an eye to at­tract­ing an un­cer­tain justice to switch sides.) Dis­sent writ­ing typ­ic­ally doesn’t be­gin un­til the ma­jor­ity draft has cir­cu­lated, but the ma­jor­ity au­thor may want to ad­dress key points in the dis­sents through ad­di­tion­al re­vi­sions. Rinse, re­peat. “It’s an it­er­at­ive pro­cess,” said Kev­in Walsh, an as­so­ci­ate pro­fess­or at the Uni­versity of Rich­mond School of Law who clerked for Justice Ant­on­in Scalia. “The big­ger the case, the harder the is­sues, the more it­er­a­tions.”

The health care case is more com­plic­ated than even the typ­ic­al block­buster. The justices asked to con­sider more ques­tions than they nor­mally do; more lower courts than usu­al have weighed in; and the brief­ing pile (thanks to the lit­ig­ants, out­side law­yers hired by the Court, and a re­cord num­ber of friend-of-the-Court sub­mis­sions) is enorm­ous. Law clerks work­ing on the case may have to read thou­sands of pages be­fore they’re up to speed””far more than in a typ­ic­al case. Mean­while, the justices and their clerks are also man­aging the Court’s oth­er cases; more than 15 de­cisions are ex­pec­ted be­fore the end of the term, ac­cord­ing to SCOTUS­b­log.

And even when the sides seem settled, some­times they’re not. About once per term, ac­cord­ing to former clerks, a justice changes his mind dur­ing the pro­cess of writ­ing, read­ing, and re­vis­ing. That’s what happened in Planned Par­ent­hood v. Ca­sey, the 1992 abor­tion de­cision for which Justice An­thony Kennedy switched sides mid­stream, ul­ti­mately writ­ing to pre­serve key parts of Roe v. Wade. Some­times, a justice in the ma­jor­ity will be moved by a per­suas­ive dis­sent. Oth­er times, the justice writ­ing the ma­jor­ity opin­ion will real­ize, once she sits down, that an ar­gu­ment that soun­ded su­per­fi­cially ap­peal­ing just doesn’t hold to­geth­er, said Car­rie Severino, who clerked for Justice Clar­ence Thomas and is now the chief coun­sel and policy dir­ect­or of Ju­di­cial Crisis Net­work.

All of which is to say: These things take time. The health care case is likely to stretch in­to the very last week of the Court’s term. If the justices’ cur­rent sched­ule holds, smart gam­blers would bet on a June 25 de­cision.