Studied by 18 people
what is the chief justice’s most influential function
assigning opinions
what are reasons a justice might threaten to, actually file a dissenting opinion
to appeal to congress to fix the court’s interpretation of a statues
to appeal to the wisdom of a future age
to encourage the majority to narrow their opinion
on opinion days, in what order are opinions delivered from the bench
the junior justice goes first
according to Rehnquist what is the main way the chief justice leads the other justices
the power of perusaion
when are dissents usually circulated
after the majority opinion
what would a follower of original public meaning disagree with
judges should update text to conform it to modern standards
how are the justices equals
they are the only 9 people in the highest court of the land
how do equals “mutually adjust“ SC procedures
alteration of oral arguments during covid
to hear and understand the justices, they had to allow each justice their time to speak on the call
they do this now by allowing Thomas to be the first to speak
how do equals “mutually adjust“ SC decision making process
by responding to opinions through memos, if they agree with the opinion or what need to be alter to get their vote
why is the chief justice non equal to the other justices
the power to assign opinions to the other justices
chief roberts works to spread the work equally but this not required
when are justices votes on opinions final
tentative until the day the court hands down their decision
how did scalia describe the purpose of the modern conference
its an exercise of persuading each other, stating your views while the rest of them take notes, so if their assigned the opinion they know how to write it in a way that will get at least 4 vote
justice prep, by the time they get to conference
hear oral arguments
parties pleadings
bench memos
they do not read from their notes, talk it out in
bench memos
made after the justices vote to hear a case
have their clerk research the background of the case and prepares memo
outlines pertinent facts, issues, propose possible questions for attorney during oral and address the merits of the case
structure of conference
speaking in order to senority
seats are assigned by ranking
opinion assignment
when the chief is in the majority he choses, if he is not in majority then the most senior justice in the majority
sotomayor is the dissenting senior justice today
is unanimity a worth goal goal?
Chief Marshall thought so
30-40s
use to type writers increased the dissents and publication of opinions
what is justice Kagan’s goal in writing and delivering opinions
figure out how to communicate complicated ideas to pp who know a lot less than you do about a certain subject
finding vivid ways of explaining that will stick w/ people
how does the Chief lead compared to the Speaker to the House
he is limited to leading by example
how do justices engage one another during the writing process
memos back and forth to the court
majority opinion
a least 5/4 justices join the opinion
concurrence opinion
different reasoning then the majority is using the justify their ruling
they write a concurrence on the side
often published when there is a plurality opinion
plurality opinion
opinion for the court that fails to command a majority even if 5 justices agree on the decision
timing
1st: majority opinion
2nd: dissents
need the opinion of the majority to argue against it
value of dissent
encourage congress to change the law
appeal to the wisdom of the future age
improve the majority opinion
what does it mean in conference when a justice says “some things will have to be worked out in writing“
oral discussions for complex cases provide board outlines but do not fine tune the various positions in the way writing opinions and dissenting opinions will
an author’s willingness to accommodate the views of another justice regarding changes to a draft opinion is proportional to
the number of votes supporting the majority opinion in conference
goal is to get and keep the 5 votes
from writ of certiorari to final decision time frame
writ was granted - 6 months to a year ago
during that time the case was briefed, orally argued and the court has handed down their final decision
originalism/ text based/ textualist
constitution say what they mean and mean what they say
the court should rule on issues with specific textual support for each assertion
w/out clear text the SC should reject the case
pragmatist
middle ground
purpostivism/ intent based
believes in updating and broad interpertations
purposivism leads to and looks at
the intent the law makers had
allows for
organ
yates v. us opinion
plurality opinion
did yates destroy a “tangible object“ when he threw his undersized grouper overboard?
originalism: Yes
purposivism: No
living constitution concept
democrat idea
purposivism
living constitution
one that evolves, changes over time, adapts to new circumstances w/out being formally amended
what dangers arises if the constitution is living or manipulable
a constitution becomes not a constitution at all, it is not even law
it s a gauzy ideas that appeal to judges who happen to be in power at a particular time and that they impose on the rest of us
original public meaning
Republican
Originalism
original intent v original meaning
intent: searching of historical records to see what the founding fathers’ intent
meaning: understanding of the text at the time is was ratified
common law
system built on the precedent of tradition that accumulate over time
allows for change but only within the certain limits of the past
stare decisis
“let the decision stand“
respect for earlier rulings
who is bound to stare decisis
all lower courts
the SC is not bound
Why is stare decisis important
stability, predictable
lower courts follow orders
constitutional oath
“I will support and defend the Constitution of the US“
Respect for Stare Decisis
Follow even when disagree: Roberts, Kagan
Middle Ground: Scalia
Overrule easily when decision was wrong: Thomas Gorsuch
Roberts as Chief
first among equals
Roberts in Dobbs
Concurrence
agrees: viability law needs to be struck down
disagrees: removing the right of choice, case the court is making goes too far, no need to strike down Roe
Judicial restraint
if it no necessary to decide more don’t decide more
led by example and persuading
Note
Flashcard