Assignment of Opinions

Thanks to all of you who attended last week's panel on Justice Ginsburg. Here is the video.

One question that came up in the Q&A, asked by one of your colleagues, is how opinions are assigned and drafted. So a quick primer.

The Justices meet in conference every Friday to decide the cases argued earlier in that week. They go around the table in order of seniority, the Chief always senior-most (regardless of how long he has been on the bench--Roberts was senior-most the day he joined the Court). Each explains her conclusion in the case and her reasoning. Following that discussion, the opinion is assigned by the senior-most Court member in the majority, with the Chief again always senior-most. This means that if the Chief is in the majority as to the judgment, he assigns the opinions, generally with the goal of distributing the cases relatively evenly for each sitting; this is one of the key powers the Chief wields. If the Chief is not in the majority, the senior-most Associate Justice in the majority assigns the opinion.

The assigned Justice takes on the process of drafting an opinion, herself and in cooperation with her clerks. Different Justices do it different ways. Some have the clerk do the first draft (after telling her the result and the basic reasoning), while others do much of the drafting themselves.

Once the draft is done, it is circulated to the other Justices to review and to make comments, suggested changes, edits, etc. The other Justices are asked to "join" the opinion. The authoring Justice may take those suggestions in order to get the suggesting Justice to join and thus to hold onto a majority (or as large a majority as possible). This is also the signal for any justices who want to write a concurrence (having joined the opinion) or to refuse to join the opinion and write a concurrence in the judgment. One or more of the justices who began in dissent following the Conference may have begun drafting a dissent, but this will pick up now that there is a majority to respond to. These separate opinions (concurrences, concurrences in judgment, and dissents) also are circulated for others to Join.

Once all the opinions have been drafted, circulated, and joined, the opinion is announced on designated opinion days, with the Justice reading a summary of the opinion from the bench. In important cases, a dissenter may read her dissent from the bench.

One interesting question that came up among the panelists, relevant to this class and the panel: Who assigned June Medical? The Chief was in the majority for the judgment, so that suggests he would have assigned. But it perhaps was clear at the time of Conference that he went along only on stare decisis grounds and would not join any opinion coming from the remaining Justices wanting to reverse. In that case, Justice Ginsburg, senior-most Associate Justice in the majority, would have assigned the opinion to Justice Breyer. It is not clear how this played out--we will not know until the Justices' papers are released years from now.