The Opinion-Writing Process

The Supreme Court's operations are conducted behind the velvet curtains in its courtroom. Its activities are visible to the public in three distinct phases of the deliberation on a case: the Court announces its decision to grant certiorari (accepting the case on appeal), the Court's oral argument when the parties' lawyers appear before the Justices in their courtroom, and the announcement of the Court's decision. Most of the Court's decision making between oral argument and the announcement of the final decision transpires out of public view.

In the days following oral argument, the Justices meet in conference to discuss the cases that were recently argued. The Justices discuss cases argued the previous Monday on Wednesday; on Friday, the Justices meet to discuss the cases argued on Tuesday and Wednesday. The Chief Justice leads the conference discussion of the case by reviewing the case facts, the lower court's decision, and the issues raised by the case. Before the discussion moves to the most senior associate Justice, the Chief Justice states the disposition that he favors. The Justices then discuss the case proceeding from the more senior Justices to the most junior Justice. This discussion of the case now constitutes the preliminary "voting" in the case. The purpose of the conference vote and discussion is, as Justice Rehnquist (1987, 295) put it, "to determine the view of the majority of the Court." Although these votes provide an indication of the direction in which the Court is likely to rule, the votes are non-binding. Each Justice records the conference vote on a docket sheet.

The Court's calendar is arranged around oral argument periods. After two weeks of oral argument, the Court breaks from that routine to work on writing opinions. To this end, at the end of each oral argument period, the Chief Justice circulates an assignment sheet, which lists the cases for which each Justice is tasked with writing the majority opinion for the Court. When the Chief Justice is in the majority at the conference discussion, the chief has the prerogative to assign the task of writing the majority opinion to another Justice in the conference majority. When the chief Justice is in the conference minority, the senior associate Justice in the majority makes the opinion assignment. The assignment sheet clearly denotes which Justice made the assignment.

The assigned author then begins work on a draft opinion. Justices either take the lead in writing a first draft or delegate that responsibility to a clerk. Even in the latter case, the Justice will play a major role in drafting the opinion. When the Justice is satisfied with the draft, he or she will circulate it to the other Justices. At this point, Court custom is for Justices to respond to the opinion draft by "joining" the opinion, expressing reservations with the opinion draft, indicating that they plan to write a separate opinion, and so on. This interaction occurs in memos written to the author with a copy usually sent to the other Justices (what they call the Conference). At the end of this process, each Justice will either write or join an opinion. When every Justice has joined or authored an opinion, the Court announces its decision to the public.

The information we present on this website pertains to the memos and draft opinions the Justices circulated to their colleagues in the course of the opinion-writing process in cases decided during the Burger Court. The interaction among the Justices as reflected in the documents available on this website allows one to view in detail how the Justices negotiated with one another over the course of a case's deliberations. These documents literally part the velvet curtains and permit a peek into the internal decision-making process of the Court.