Opinions, writing of Summary

  • Last updated on November 11, 2022

Written statements explaining the Supreme Court’s decision in a case. Opinions fall into four types: opinions of the Court (majority opinions), judgments of the Court (plurality opinions), concurring opinions, and dissenting opinions.

Many of the modern procedures regarding the assignment and writing of opinions were initiated shortly after 1801, when Chief Justice John MarshallMarshall, John assumed office. Marshall preferred that the Supreme Court issue a majority opinion, believing that a more unified presentation of the rule of law would strengthen its impact.

The Process

After hearing oral argument in a case, the justices meet in secret conference to decide, by formal vote, whether to reverse or to affirm the decision of the lower court. This vote is known as the conferenceConference of the justices vote on the merits. If a chief justice is in the majority at the conference vote on the merits, he or she assigns the writing of the opinion of the Court. Chief justices can write the opinion themselves or select any justice in the majority. If the chief justice is in the minority or fails to vote, the senior associate justice in the majority assigns the majority opinion. Fred M. Vinson assigned 80 percent of the majority opinions while he was chief justice. Chief Justice Earl Warren assigned 86 percent, as did Chief Justice Warren E. Burger. Chief Justice William H. Rehnquist assigned 82 percent of the majority opinions through the 1990 term of the Court.

In the late 1980’s, Justice William J. Brennan, Jr., introduced the same assigning procedures for dissenting opinions when more than one justice was in dissent at the conference vote on the merits. Before that time, justices in dissentDissents would write dissenting opinions at will.

After receiving the assignment to write the opinion of the Court, the justice prepares a preliminary draft. This draft is circulated to all the justices participating in the case. The other justices send back memos in which they indicate that they join the Court’s opinion, request substantive changes to be made to the opinion, state that they will not be joining the opinion of the Court, or inform the opinion writer that they will decide whether to join after they have read the other opinions in the case. The opinion writer might revise the opinion and redistribute several drafts of it.

The justices are free to change the vote they cast at the conference at any time before the handing down of the decision of the Court. As a result, the Court at conference might vote to reverse the decision of the lower court but vote to affirm that decision at the final vote on the merits.

It takes a majority vote to generate an authoritative opinion of the Court. If such a vote is not obtained, the opinion will be a judgment of the Court (also known as a plurality opinion), which lacks full precedential power. In addition to majority, plurality, and dissenting opinions, the justices on the Court can write concurring opinionsOpinions;concurring. A justice who writes such an opinion agrees with the outcome favored by the majority or plurality opinion writer but disagrees with one or more of the statements set forth in that opinion. A concurring opinion writer may or may not join the opinion of the Court.

A Statistical View

Researcher Elliott Slotnick inspected all 6,275 opinion assignments made by the chief justices from the beginning of the Court under William H. Taft in 1921 until the end of the 1973 term of the Burger Court. Slotnick discovered that from the last four terms of the Vinson Court (1949-1952) until the end of the 1973 term, the chief justices tended to assign to each justice approximately the same number of opinions of the Court. In “important” cases, however, the equality norm was not followed. Instead, the chief justices tended to assign the majority opinions to themselves or to those justices who usually vote with them. The chief justices were more likely to self-assign in cases involving a unanimous or highly cohesive Court than in cases involving a highly divisive Court. In addition, Slotnick found that new justices were not disadvantaged in opinion assignment.

Subsequent researchers discovered that specialization took place in opinion assignment on the Warren and Burger Courts. Justices ranked as “failures” by law professors were assigned fewer opinions of the Court. Justices on the Vinson Court who wrote more quickly were favored in opinion assignment, and in cases decided by a 5-4 or 4-3 vote at the conference vote on the merits on the Warren Court, the justice ideologically closest to the dissenters was assigned approximately twice the number of opinions of the Court as could be expected based on chance.

Content of the Majority Opinion

In an innovative 1991 study, Glenn Phelps and John Gates compared the constitutional arguments made by conservative justice Rehnquist and liberal justice Brennan in their majority opinions. They expected Rehnquist to advance arguments based on the text of the Constitution and the intent of the Framers and Brennan to present arguments based on what is just or what is good for society. They discovered, however, that there were only minor differences between the justices regarding how often they advanced these kinds of arguments. Both justices overwhelmingly advanced arguments based on precedent.

Further Reading
  • Blanc, D. Ellsworth. The Supreme Court: Issues and Opinions. Huntington, N.Y.: Nova Science Publishers, 2001.
  • Phelps, Glenn A., and John B. Gates. “The Myth of Jurisprudence: Interpretative Theory in the Constitutional Opinions of Justices Rehnquist and Brennan.” Santa Clara Law Review 31 (1991): 567-96.
  • Sekulow, Jay. Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions. Lanham, Md.: Rowman & Littlefield, 2006.
  • Slotnick, Elliott E. “Who Speaks for the Court? Majority Opinion Assignment from Taft to Burger.” American Journal of Political Science 23 (1979): 60-77.
  • Van Geel, Tyll. Understanding Supreme Court Opinions. 4th ed. New York: Longman, 2005.

Collegiality

Concurring opinions

Conference of the justices

Decision making

Dissents

Marshall, John

Seriatim opinions

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