How do SCOTUS rulings work?

[Rmeju]

This is, of course, in reference to Heller.

When the supremes make their decision, which one of the justices on the majority side gets to do the writing of the opinion that sets the legal precedent.

The reason I ask is that some of the justices that seemed to be in agreement with Heller were more in agreement than others. Even Breyer (I think it was him) who said to Gura "This is good for you, but not as good as you'd like" which IMO was his way of saying he might strike down this ban, but wasn't gonna give him strict scrutiny.

Personally (and I think many here would agree) that we'd like someone like Thomas, Scalia, or Alito writing the majority opinion of a win for our side. What if it was Breyer? Does the CJ just get to write it, is is a mix of opinions, or simply hashed out between the two extreme ends of the of the winning side that will be somewhere in the middle?

How is that all decided?

Reid

 

[PaladinX13]

There's some behind-the-scenes politicking... usually the most moderate/swing vote is given the opportunity to write for the majority to ensure solidarity. This is a concession in and of itself, but sometimes, if a swing-vote's position is more tenuous, this means giving up more things in the opinion, but rarely so much as to be as dramatic as being on the other side.

However, with a strong majority or with historical cases, there's a tendency for the CJ to assign the case to either himself for the prestige, the best writer for clarity to the public, or the most persuasive for posterity... rather than simply appeasement.

After that, the minority will write a dissenting opinion and then any justice can write separately opinions which concur or dissent in whole or part, usually emphasizing/disagreeing with one point or another that the majority holds.

Although Scalia or Thomas may hold the most sympathetic views, you don't necessarily want them writing the opinion because the only power an opinion has is its persuasive value. While majority rulings are highly persuasive (and binding on all courts save SCOTUS), the political reality is a seat change or two can result in an overturned holding a mere 2-5 years later. Scalia has a habit of writing scathing opinions and Thomas fairly marginalized views on originalism... so if there was a shift in court composition, it would be easier to dismiss their opinions than a more moderate justice. The writing style and process depends on the individual justice, but in all but the rarest of circumstances it is the product of committee to a large degree.

 

[jrfoxx]

It's my understanding that the most senior justice for the majority decides who writes for the majority, and the most senior of the minority (dissent) decides for them. Obviously, the chief justice would be the most senior for whatever side he lands on. So, no real way to know who will write what until they have decided and released it, as the most senior may decide to write it himself, or may decide to pass it on to whomever he pleases.

I have no idea how its decided who else may chime in for the dissent side and all that, but I'll assume what PaladinX13 siad on that is the case, as he/she sure seems to know more about the whole thing than me, so, I'll buy it.

The rest of what he said is also likey true as far as WHY certain people are given (or choose) the task of who does the writing.Seems to make perfect sense and be logical, so again, I'll buy it.

 

[brickeyee]

Separate concurring and dissenting opinions can also be written by any justice that wants to.

Even to the point of agreeing in part (for or against) with the decision but taking a different view.

 

[Kharn]

The speculation I have read says either Roberts will write the brief himself, or assign it to Kennedy.

Kharn

 

[usmarine0352_2005]

The speculation I have read says either Roberts will write the brief himself, or assign it to Kennedy.

Kharn

Would this be good or bad for us?

 

[Rmeju]

Pally,

1. You say that the majority opinion has only two functions: namely to persuade and that they are binding on every other court in the country. Obviously, the latter function is what I was concerned with . Did I miss some of the importance of the first function?

2. All due respect, who would have standing or even a case to challenge an individual rights ruling in 2-5 years, even under strict scrutiny? I have no idea what a case would look like that would challenge such a ruling. This case doesn't take away any right from any entity except perhaps by defining who federal lawmakers' inability to "infringe" RKBA applies to (depending on the wording of the opinion, of course. I'm assuming no incorporation in this ruling). Therefore, would they not be the only entity with any legal standing? If so, do you feel that it is unlikely that the gov't would challenge that in court? Did you have something in mind as an example of a sweetheart anti case that could bust a Thomas/Scalia/Alito written opinion later on? How about a Kennedy/Roberts opinon?

Now I have a new question. Let's say the 'majority' majority opinion (no, that wasn't a typo, but I don't know what else to call it) says we should get strict scrutiny, but the 'dissenting' majority says individual right, but not strict scrutiny. What does that mean for lower courts, legally speaking? How is a conflicting majority opinion handled?

I'm sure I'll have more questions to follow, this has been both interesting and informative!

Reid

 

[green-grizzly]

They had a meeting on the Friday after the hearing and voted whether to affirm or reverse. Whichever side the Chief is on, he gets to pick who writes that opinion. The most senior judge on the other side gets to pick who writes for their position. So hopefully, Roberts got to pick who writes the majority opinion and Stevens got to pick who writes the dissent.

Opinions are then drafted (mostly by clerks) and circulated among the justices. Justices who are not writing the main opinions can write their own concurring opinions or dissents if they want.

A justice can change his mind and change sides. So someone who originally was writing the dissent can end up writing the majority opinion.

I have read speculation that Roberts would write the opinion himself (as he would like a narrow ruling) or let Kennedy do it (to keep him on board). But I don't think court watchers have a real good record of predicting these types of things.

If a position gets five votes, it becomes the law of the land. What the dissent says is largely meaningless. It can become complicated where there is no absolute majority for a position. For instance, it might come down that two justices say that "shall not be infringed" means what it says and the lower court should be affirmed, three justices adopt the "intermediate scrutiny" standard advocated by the Bush DOJ and vote to remand (send it back to the lower court to gather more information), two justices hold that it is an individual right but that an even lower level of scrutinty should be applied, and two hold that it is a collective right and the lower court should be reversed. The result of that mess is an individual right (7-2) and five votes for at least intermediate scrutiny, so that is what the lower courts would apply.

 

[Winchester 73]

My money is on Kennedy if its a 5-4 decision.
If Heller wins 6-3 or better, Breyer(assuming he's with the majority)
will write it.
Stevens,if he's still able ,will write the dissent.
Hopefully, Vegas is taking odds on this.

 

[PaladinX13]

1. You say that the majority opinion has only two functions: namely to persuade and that they are binding on every other court in the country. Obviously, the latter function is what I was concerned with . Did I miss some of the importance of the first function?

Yes. While the second function is important, it lasts only as long as the first function is effective. Why? Because when it comes to the application of the ruling, if the lower courts are unconvinced, they may take liberties with their interpretation of Heller's holding. At that point, if SCOTUS is persuaded by a majority or plurality of the lower courts, they may "refine" their interpretation to be line with what the lower courts hold and/or do it de facto by simply refusing to grant cert.

2. All due respect, who would have standing or even a case to challenge an individual rights ruling in 2-5 years, even under strict scrutiny? I have no idea what a case would look like that would challenge such a ruling. This case doesn't take away any right from any entity except perhaps by defining who federal lawmakers' inability to "infringe" RKBA applies to (depending on the wording of the opinion, of course. I'm assuming no incorporation in this ruling). Therefore, would they not be the only entity with any legal standing? If so, do you feel that it is unlikely that the gov't would challenge that in court? Did you have something in mind as an example of a sweetheart anti case that could bust a Thomas/Scalia/Alito written opinion later on? How about a Kennedy/Roberts opinon?

The State in the guise of a city, county, government, agency, etc. Irrespective of what Heller says, the state can look at it and say it says something wholly other giving rise to a lawsuit requiring SCOTUS clarification. Especially if it's an argument premised on originalism (where policy might trump) or conservation (where control might be claimed as a new tradition). For a flip-flop, look at Rehnquist on gender discrimination.

Basically, it'll require a body of law before the Heller decision does any work... standing alone people can work it any way they want and some ways of writing the opinion are more effective than others. You want a series of confirming opinions not simply one ruling to sit on- after all, if the 2nd can be reinterpreted as much as it has... and if there's so much debate over that Miller means... how useful is Heller going to be? You want an opinion that lends itself to being easily applied and "clarified" in a favorable way.

 

[Rmeju]

So, you're basically saying that courts who don't like this decision (however it comes down) will have liberty to dance around with the semantics to mold into something they want? Then, a party in disagreement with such a ruling can take it all the way back up the ladder to SCOTUS for review and clarification, and this will have to be repeated, one loophole at a time, until all the loopholes are squashed?

Fine. America at work.

About originalism & conservation: You are saying that policy might trump originalism? Isn't originalism trumping policy the whole function of the judicial system?

I can see an (albeit thinly stretched) argument for gun control being the new gun 'tradition' if the opinion was based 'only' on conserving the tradition of gun use/ownership. Somehow, I don't see this as the basis for the opinion in this case, however.

I still don't know what a case would look like that would get back to the court on this one though. As far as I know, without incorporation, no state, city, or county can challenge, because right now they're not even affected. And we're a far cry from incorporation, especially in this case.

@Winchester,

Why do you say Breyer would write it? The thought makes me shiver! Kennedy, seems quite ready to be intellectually honest, though I still would like to see a true pro guy write the opinion.

Reid

 

[frankie_the_yankee]

FWIW, I see no chance at all that Breyer will end up on the individual rights side. If anything, he will vote with the justices who want to reverse and remand - even while pretending to support an individual right in whatever opinion he may end up writing.

Breyer seemed to clearly be of the mind that the 2A was an "individual right", but one that was subject to virtually any amount of local restriction or regulation.

So a Breyer opinion would be likely to state that the 2A was an individual right, (to fulfill his almost pathological urge to pay lip service to Originalism) but that the DC gun bans were perfectly reasonable regulations for a high crime municipality, yadda, yadda, yadda.

In support, he'll probably dig up some statute taken from Aboriginal Law engraved in a mud wall somewhere in the Australian Outback.

 

[PaladinX13]

So, you're basically saying that courts who don't like this decision (however it comes down) will have liberty to dance around with the semantics to mold into something they want? Then, a party in disagreement with such a ruling can take it all the way back up the ladder to SCOTUS for review and clarification, and this will have to be repeated, one loophole at a time, until all the loopholes are squashed?

Something like that. Look at Nutter's actions in Philly... blatantly against the law but nonetheless "passed" for now.

About originalism & conservation: You are saying that policy might trump originalism? Isn't originalism trumping policy the whole function of the judicial system?

Yes to the first question. Arguably no to the second. It, of course, relies on your personal jurisprudence. On one hand you can say with two politically active branches of government, the justices serve as brakes against the tyranny of the majority... however, in recent/modern jurisprudence, judicial activism is encouraged because:

1. The law, textually/historically/etc. is always incomplete (even if you try to divine the intent of the framers, which ones? at best you're divining an aggregation views and a compromise of positions) thus judges have ALWAYS filled in the gaps with interpretation (called Common Law - or judge made law) so this is the traditional role of the court (even think back to the story of King Solomon... clearly a woman can't steal another's son, but how to determine the mother was his "judge made law" at the moment... a future judge then could interpret his "holding" either narrowly "The only way to tell the mother is to threaten to kill the baby!" or broadly "Clearly it's about which ever woman shows she cares more." This is how judge opinions shape the law). So justices are more than comfortable to interpret a law beyond its original text/meaning if only because it's original meaning is unclear/insufficient (like the 2nd doesn't expressly say "Individual Right to be Incorporated to the States", this needs to be interpreted).

2. Some justices basically feel they can do no wrong... that they are an instrument of progress and ordained by the elite to push policies that are reflected in American ideals and abroad. That if they screw up, well, justices of the future will recognize it and overturn them, so they just need to do what's right for America now. Although there are examples of their missteps leading to bad precedent, they're right... those bad decisions are largely overturned. And they do have a number of the "big cases" under their belt to point to as the court as an instrument of "positive" change to spur them on.

The point is that this view is gaining momentum on all fronts. Recall that the vast majority of court justices were Republican appointees yet they came to this conclusion on their own when unfettered from the political process. It is somewhat unrealistic to expect an opinion based heavily on originalism to stand against this trend in the court and with- likely- 8 years for new appointees from the other side.

I still don't know what a case would look like that would get back to the court on this one though. As far as I know, without incorporation, no state, city, or county can challenge, because right now they're not even affected. And we're a far cry from incorporation, especially in this case.

DC themselves can do it, just under a different statute.