Behind the scenes of the Supreme Court’s busiest season

By CNN Newsource

Published June 4, 2021 3:01 AM

Supreme Court justices have known for months whether the Affordable Care Act will be struck down. They’ve decided whether a Catholic social service agency may refuse to screen same-sex couples as foster parents. And they’ve resolved whether a school wrongly disciplined a cheerleader who posted a profane Snapchat rant when she failed to make varsity.

But they won’t tell the public just yet. That’s because unlike in Congress, where a vote among members is the end of the matter, a vote at the court is just the beginning.

Right now, in the last month of the annual court session, as the litigants, their lawyers and other court observers find themselves in an anxious waiting game, the nine justices are in furious writing mode.

This is when things get especially interesting and tense, but also remain secret. The court announces specific decision days each week, as it has for next Monday, at 10 a.m. ET. But it never reveals which opinions are coming when.

Behind the scenes, the justices writing for a majority in the remaining 23 cases this session are bolstering their legal reasoning and countering dissenters. If a case is closely decided by a 5-4 vote, an author wants to “hold five,” that is, respond to requested modifications in the opinion from one justice in the majority without losing another.

Much of the heat, along with delays, arises from the back-and-forth between the majority and dissenters. The justices communicate through written draft opinions and memos, and under court protocol, even when the internal debate concerns only two or three justices, the others are copied in.

Traditionally, draft opinions and memos between justices are printed out and circulated among the nine chambers by messengers; during the past year because of the Covid-19 pandemic, justices necessarily relied on some electronic communications and deliveries to their individual locations. The justices’ law clerks vow confidentiality, and leaks regarding deliberations are exceedingly rare.

In the most closely watched, tension-generating cases, the writing, revising, point and counterpoint can drag on. Last term, for example, the justices heard arguments and voted in October 2019 on whether federal anti-discrimination law covered LGBTQ workers. Their 6-3 private vote held firm. Justice Neil Gorsuch finished his first draft for the majority in February 2020, and dissenting justices, notably Samuel Alito, undertook an extensive, acerbic set of responses to try to undercut the majority’s justification.

EXCLUSIVE: Anger, leaks and tensions at the Supreme Court during the LGBTQ rights case

Drafts and more drafts flew between the two sides. The justices did not finish their writings until June. The decision favoring LGBTQ rights and dissenting opinions, by Alito, joined by Clarence Thomas, and, separately, by Brett Kavanaugh were issued on June 15, 2020. As happens in other realms, arguments expand and deadlines pass.

Still, the pressures of June can sometimes create the opposite effect, too. Roberts’ predecessor, Chief Justice William Rehnquist, wrote a note to Justice Thurgood Marshall decades ago in a case that said, “If this were November rather than June, I would prepare a masterfully crafted dissenting opinion exposing the fallacies of your … discussion.”

The chief justice added, “Since it is June, however, I join” the majority opinion drafted by Marshall.

Marshall died in 1993 and Rehnquist in 2005, and today’s court, reconstituted with three appointees of former President Donald Trump, may find tensions rising rather than receding as June unfolds. Even with less prominent cases issued so far, the justices have been questioning each other’s motives and engaging in an unusual amount of personal accusation and finger-pointing.

How it works

The justices operate under long-established traditions. They vote in private on cases a few days after public oral arguments. That means that they cast votes seven months ago on cases testing the fate of Obamacare (heard on November 10) and on whether religious agencies may refuse same-sex couples for foster-child placement (heard on November 4).

Roberts (or the most senior justice in the majority on a case) decides who will write the majority opinion. The senior justice among the dissenters assigns the opinion for that side. Other justices are free to write their own dissents or concurring statements if their legal reasoning varies.

Some court observers thought the justices would have completed a ruling in California v. Texas, the dispute over Obamacare, by now. During oral arguments, a majority appeared ready to uphold most of the law that has provided health care coverage to more than 20 million Americans and that previously survived two Supreme Court challenges.

But the justices face thorny procedural issues in the new case, along with a question of the overall fate of the law that has been challenged by Texas and other Republican-led states. Additional questions relate to rules for legal “standing” to bring a lawsuit and whether one invalid section of the law necessarily dooms the entire congressional act. The trio of issues could be producing three shifting sets of justices in the majority and in the dissent.

Protracted June conflicts can turn on fundamental principles, such as related to congressional power in the ACA case or the free exercise of religion in the foster parent controversy. Or disagreements can come down to the small print of footnotes.

Justices have been known to quarrel for days, even weeks, in dueling passages, only to drop their differences when it comes time to make the opinion public. Outsiders typically learn of such instances after the papers of deceased justices are made public or from rare media disclosures.

Only the nine justices and their closest staff know now which justices may be pounding on a point, in a way that has delayed release of a decision, or who, perhaps, may be surrendering and dropping an argument. There could also be a rare switch at the 11th hour, changing the outcome of a case and the law.

Roberts reconsidered his vote in one of the most important cases of the 2018-19 session, transforming the outcome in a dispute over then-Commerce Secretary Wilbur Ross’ effort to add a citizenship question to the decennial census questionnaire, CNN reported.

Roberts’ switched vote, suddenly joining the four liberals at the time, blocked Ross’ effort to amend the form in a way that challengers said would discourage the participation of new immigrants and minorities.

Several years earlier, Roberts switched sides in the first momentous Obamacare battle, to the enduring consternation of fellow conservatives. In assessing parts of the sweeping health-care overhaul, Roberts initially, during March 2012 votes, found an individual insurance requirement unlawful and a Medicaid expansion provision valid.

By June of that year, however, he had changed his view of both. In the move that drew the most attention at the time, he decided to uphold (with the four liberal justices) the individual insurance mandate, the linchpin of the Affordable Care Act.

A 2005 appointee of Republican President George W. Bush, Roberts immediately engendered anger among conservatives on the court, who were relegated to dissent on the issue, and from Republicans across the country.

On the June 28, 2012, day that the opinion was issued, Roberts attended a judicial conference, at which he joked about a scheduled trip to Malta “an impregnable island fortress.”

Added Roberts, aware of the controversy he was creating, “It seemed like a good idea.”

Article Topic Follows: National Politics

Jump to comments ↓