POS Lesson 9 &10

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