Court Writing Opinions in the United States
Supreme Court of the United States: Writing Opinions
Introduction to Court Writing Opinions
Once the Court reaches a tentative decision, there remains the important task of writing an explanation of the legal reasoning behind the ruling. This document, known as the majority opinion, establishes the law on the issue in question, so justices take considerable care in drafting them. If the chief justice sides with the majority of justices in voting on a particular case, the chief justice can then assume responsibility for the task of writing the Court’s majority opinion, or assign the task to another of the justices in the majority. If one or more justices disagree with the Court’s decision, they may write a dissenting opinion that explains their views of the case and the law. If the chief justice sides with the dissenting minority, then the most senior justice in the majority writes the majority opinion or assigns the task to another of the justices in the majority.
The justices often ask their clerks to prepare the first drafts of their opinions. This practice, Chief Justice William Rehnquist wrote, “may undoubtedly and with some reason cause raised eyebrows in the legal profession and outside of it.” But as Rehnquist explained, the “law clerk is not off on a frolic of his own, but is instead engaged in a highly structured task which has been largely mapped out for him by the conference discussion and my suggestions to him.” Few drafts escape heavy editing and revisions by the justices.
Justices may take weeks or even months to complete their opinions, and votes may change during this period. The justices circulate drafts of the opinions and sometimes write memos to explain their views. Dissenting justices sometimes decide to go along with the majority, and justices initially in the majority may decide to support the dissenting view. In some cases enough justices change their votes that an opinion that began as the Court’s majority opinion becomes a dissenting opinion. Because the justices can and often do change their votes right up until the moment the decision is publicly announced, there is often a considerable amount of discussion and negotiation to shape the direction, tone, and analysis of the Court’s opinion.
Although there is often a single majority opinion and a single dissenting opinion, each justice can write his or her own opinion on either side of the case. Separate opinions that support the majority decision are called concurring opinions and are published along with the majority opinion and any dissents. Only the majority opinion carries the force of law, but dissenting opinions sometimes signal possible new directions in the Court’s thinking on an issue.
When the opinions become final, the justices announce their decisions in open court. The opinions are then published in a variety of places. The Court records its official decisions in the United States Reports, a periodical published after each Supreme Court term. The United States Reports are often delayed by months or even years, so decisions are also published unofficially by private publishing houses. The most widely known of these publications are Supreme Court Reporter and United States Supreme Court Reports, Lawyers’ Edition. Decisions appear the next day in U.S. Law Week, a pamphlet series. They are also available in the two major electronic commercial legal databases, Lexis and Westlaw, and on many World Wide Web sites.” (1)
Resources
Notes and References
- Information about Court Writing Opinions in the Encarta Online Encyclopedia
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