With so much attention justifiably focused on the Supreme Court this week, it is worth considering how Supreme Court opinions are drafted. The public assumes that the justices write their opinions themselves, but most lawyers know that what actually happens is very different. Forrest Wickman's column in Slate sheds some light on the inner workings of the Court, and might be worth sharing with students in Advanced Legal Research courses.
Wickman speaks in mostly general terms about the opinion-writing process because there is a "code of secrecy" that governs it and most of the other internal workings of the Court. (We certainly know that the code of secrecy is alive and well based on the fact that there were few or no leaks about how the Court would rule today in the Affordable Care Act case. The only leak that I heard was that Chief Justice John Roberts would write the opinion, which turned out to be true. I think most commentators believed the Court would find the Act unconstitutional in whole or in part.) What we know is that "justices are responsible for the substance of their opinions in each case, [but] their clerks usually do the majority of the writing." Wickman refers to the Sorcerers' Apprentices, a recent book that
found that about 30 percent of the opinions issued by the Supreme Court are almost entirely the work of law clerks, with clerks responsible for the majority of the court's output. This is a relatively recent development: The Supreme Court began to institute clerks only in the 1890s, but by the mid-20th century they were already playing a significant role in drafting opinions.Once a case has been argued and an initial vote taken by the Court, one of the justices is selected to be responsible for the opinion, and Wickman discusses how this decision is made. Justice Scalia sometimes writes decisions himself, but most of the other justices assign one of their four clerks to write the first draft of the opinion. (Chief Justice Roberts has five clerks by virtue of his office). The justice will direct the clerk to a greater or lesser extent, and then the clerk will begin the drafting process, which "may involve painstaking research and working nights and weekends." The clerks arrive at the Supreme Court expecting to work hard and they do; after their clerkships, however, they are much in demand at law schools and law firms and their hard work pays off. Another intangible benefit must be the opportunity for clerks to have a lot of influence on our legal system so early in their careers. It must be a very heady experience.
After the clerk submits the first draft, the justice reads it and may request small revisions or wholesale rewriting. Once it passes the justice's muster, it is transmitted to the other justices, and this may lead to more revisions. If there are concurrences and/or dissents, they too are circulated. Eventually each opinion gets one last proofreading from the staff of the Court, citations are checked, and a syllabus is prepared for the majority opinion (also reviewed by the justices and clerks). The opinion is posted on the Supreme Court's website and printed as a slip opinion. Further corrections and changes may be caught before the official United States Reports volume is printed. Some commentators feel that the clerks "have contributed to a decline in the quality of the court's writing," but it's hard to be sure whether that observation is true.
The illustration is a fragment of Chief Justice John Marshall's handwritten opinion in Marbury v. Madison, 5 U.S. 137 (1803). It comes from the Exploring Constitutional Law website, which is a service of the University of Missouri-Kansas City Law School.