This entry appears at WFAE's The Party Line:
So now 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 up 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
to the other justices. 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 (5 in the case of 9 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 5 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 it.
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 that 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.
Othertimes, 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 an unconstitutional ruling.
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 negotating 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.