“The case is submitted,” declared Chief Justice John Roberts at 2:24 p.m. on Wednesday, March 28. And so began the odyssey of the health care cases through the Supreme Court’s internal decision-making process. The path is likely to lead to a ruling in late June. But what will be happening until then?
The actual progress of this particular case – i.e., which side won which issue – is a closely guarded secret, the kind that almost never leaks, which is a rarity in Washington.
But from the study of the papers of past Justices (to which I will link throughout this post to help illustrate the process), books about the Court, and articles in law reviews, it is possible to describe the process ongoing behind the scenes. This description should be of interest to students in constitutional law, seminars on the Court, federal courts, health law classes and many others following the debate over the health care cases.
Let’s go back a couple of steps. Before the six hours of oral argument on March 26-28, each of the Justices would have spent a substantial amount of time discussing the cases with some or most likely all of their four law clerks, reading the briefs and thinking about questions to be asked. Some may have had their law clerks prepare a “bench memo,” a detailed, often lengthy memo summarizing the arguments in the briefs.
After the arguments, the Justices would likely have again discussed the cases with their clerks to decide what position to take when the Court met to vote on the cases. These strategy sessions might also have included discussion of where the votes of other Justices were likely to fall.
The conferences are generally held on Wednesday afternoon and Friday morning during the fourteen weeks in which the Court hears arguments (and additional Fridays to consider petitions and updates on argued cases) – here, Wednesday, March 28, and Friday, March 30. But the conference is a routine – and confidential – part of the Court’s regular process.
Only the nine Justices are present in the room; there are no staff present. When the Justices discuss argued cases, the Chief Justice begins by summarizing the case and then casts his vote. They then proceed from the most senior Justice – the Chief Justice, then Justice Scalia – to the most junior – currently Elena Kagan – with each stating his or her view and vote.
Decades ago, the Court may have followed a slightly different procedure. It was widely believed that the Justices went around the conference table twice, once starting with the most senior Justice stating his views and a second time starting with the most junior Justice casting a vote. It is unclear when that procedure was followed or precisely when it was scrapped. But the once-around-the-table system has been in place for at least fifty years.
With cases as complex as the health care appeals, presenting intertwined questions of law and procedure, it would not have been unusual for the Chief Justice to impose a special structure for the Court’s deliberations. Chief Justice Roberts may well have specified the order in which the Court would consider whether the Anti-Injunction Act deprives the Court of jurisdiction to decide the case before 2015, whether the mandate that virtually all Americans obtain health insurance is constitutional, whether it can be severed from the rest of the massive Affordable Care Act, and whether the Act’s expansion of Medicaid violates states’ rights.
It is quite likely that the Justices emerged from the conference on March 30 knowing the presumptive outcome of the health care cases. It is also likely that the Justices knew at the end of the conference who will be writing the lead opinion. While the Court’s general practice has been that opinion assignments are confirmed in a written memo, some recent law clerks say it is common to know almost immediately after the conference who will be writing which decisions. The Chief Justice assigns the authorship if he is in the majority; if the Chief Justice is in dissent, then the next most senior Justice in the majority assigns the authorship. Many commentators have speculated that Chief Justice Roberts will want to write the lead opinion for the Court in the health care cases, regardless of the outcome, which would essentially mean that Chief Justice Roberts was assigning the opinion to himself. The senior Justice in dissent may also suggest that someone author a lead dissenting opinion.
Once the conference concludes, the hard work of drafting and revising begins. There is sometimes a misconception that the Justices arrive at their decisions through a process that resembles in-person lobbying and negotiating activity in the halls of Congress. But that is generally not the case. The vast majority of what happens in a decision takes place in writing.
That is not to say that there are not phone conversations among Justices or office visits from one to another. There are, and those personal interactions may play an important part in shaping a case. Perhaps the most famous example is the meeting and subsequent collaboration among Justice Anthony Kennedy and now former Justices Sandra Day O’Connor and David Souter that led to their joint 1992 opinion in Planned Parenthood v. Casey, reaffirming the basic right to abortion. But by all accounts, those personal encounters are much rarer than one might imagine.
So what does take place inside the Court? Typically, the Justice writing the majority opinion meets with his or her law clerks to review the notes from the conference discussion and to map out the approach that the opinion will take. This is especially important where the vote at the conference was a close one (five to four or six to three), because the outcome may be tentative or held together delicately by more than one rationale. The written opinion will have to bridge the different views of the Justices or risk losing the Court majority. Whichever way the health care cases come out, this seems a likely challenge for the opinion author – preparing a decision that will fairly accommodate views of differing scope and breadth among those in the majority.
Most Justices will have a law clerk write the first draft. In cases as complex as the health care appeals, it is likely that more than one clerk will be involved in the drafting. That first draft may go back and forth multiple times between a Justice and his or her clerks before it is ready to be shared with the other Justices.
When a draft is ready to be shared, the author will generally share it with all of the other eight Justices, sending the draft by internal messenger to each chambers. However, if the opinion author is concerned about appealing to one Justice whose vote may be tentative or uncertain, the author may sometimes choose to show the draft first to the swing vote to see if it meets the concerns of that all-important Justice. Only after the swing vote has reacted will the draft be circulated to the full Court.
Once the draft is circulated, the other Justices reply in writing. The most direct reply simply says, “Please join me,” the odd formulation that is the customary way for a Justice to sign on to an opinion. But Justices will also often reply with written requests for modifications in the draft. These may range from trivial points – for example, a request to remove a reference to a case or law review article with which a Justice disagrees – to a more extensive disagreement with some part of the legal analysis. Other Justices may reply that they plan to write a dissent or that they plan to await the circulation of other opinions in the case.
A back-and-forth process ensues. The author of the lead opinion will make whatever changes are acceptable and necessary to command a Court majority. Additional drafts are circulated, with each subsequent version marked as a “2nd draft,” “3rd draft,” and so on. When one or more dissenting opinions are circulated, the author of the majority must then decide whether and how to respond to the points made in the dissents. Sometimes the response is in one or more footnotes, but at other times the response requires additions to the text of the lead opinion. Generally, the authors of the competing decisions will limit their number of redrafts so that they don’t go on responding to one another forever with no stopping point.
While this written exchange unfolds, the Justices may update the conference on the progress of the case, especially as it nears completion. When all Justices agree that a decision is completed and no additional writing is underway, it will be scheduled for public announcement by the Court. The author of the majority opinion usually reads a short summary of the case and what the Court has done with it. The dissent is usually just a passing reference in the summary by the author of the majority; however, several times each Term, a Justice will feel strongly enough to read a dissenting opinion from the bench as part of the opinion announcement.
As the Court announces the decision, the Public Information Office is notified that the opinion has been released, and copies are handed to reporters in the Supreme Court press room, who then begin the process of near-instant dissemination of what the Justices have decided.
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