Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
Introduction Case Selection Decision Making Archive Viewer
Information on Decision Making

Oral Arguments

Once the Supreme Court agrees to decide a case, the clerk of the Court informs the parties. The parties have two methods of presenting their side of the dispute to the justices—written and oral arguments. Written arguments, called briefs, are the major vehicles for parties to Supreme Court cases to document their positions. Under the Court's rules, the appealing party (known as the appellant or petitioner) must submit its brief within forty-five days of the time the Court agrees to hear the case; the opposing party (known as the appellee or respondent) has thirty days after receipt of the appellant's brief to respond with arguments urging affirmance of the lower court ruling.

Attorneys also have the opportunity to present their cases orally before the justices. Each side typically has thirty minutes to convince the Court of the merits of its position and to field questions the justices may raise. The justices are allowed to interrupt the attorneys at any time with comments and questions. (Tim Johnson has posted notes that the justices passed to each other during oral arguments.)

Justice Blackmun took notes during oral arguments. Below are a few examples from his papers. Note that he "graded" the attorneys—variously using a scale of A to F (1970-74), 90s to 60s (1975-77), 8 to 2 (1978-94).

No. 91-1950, American Dreding Co. v. Miller
Argued: November 9, 1993

cert pool memo last page
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No. 91-998, Commissioner of Internal Revenue v. Soliman
Argued: October 5, 1992

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No. 86-1521, United States v. Wells Fargo Bank
Argued: December 8, 1987

Conference Discussion

After the Court hears oral arguments, it meets in a private conference to discuss the case and to take a preliminary vote. Below are Justice Blackmun's notes from the Court's discussion of Holder v. Hall, 91-2012.

Page 1 (The Chief Justice, Stevens, O'Connor, and Scalia)

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Page 2 (Kennedy, Souter, Thomas, and Ginsburg)

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Blackmun's views

Opinion Assignment

The conference typically leads to a tentative outcome and vote. What happens at this point is critical because it determines who assigns the writing of the opinion of the Court--the Court's only authoritative policy statement, the only one that establishes precedent. Under Court norms, the chief justice assigns the writing of the opinion when he votes with the majority. The chief may decide to write the opinion or assign it to one of the other justices who voted with the majority. When the chief justice votes with the minority, the assignment task falls to the most senior member of the Court who voted with the majority.

This document shows the opinion assignments for November 15, 1993. Note that Justices Stevens (JPS) assigned one and Blackmun (HAB), two. (A "DIG" means certiorari dismissed as improvidently granted.

Opinion Circulation

Once the justices receive the first draft of the opinion, they have many options. First, they can join the opinion, meaning that they agree with it and want no changes. Second, they can ask the opinion writer to make changes, that is, bargain with the writer over the content of and even the disposition—to reverse or affirm the lower court ruling--offered in the draft. Third, they can tell the opinion writer that they plan to circulate a dissenting or concurring opinion. A dissenting opinion means that the writer disagrees with the disposition the majority opinion reaches and with the rationale it invokes; a concurring opinion generally agrees with the disposition but not with the rationale. Finally, justices can tell the opinion writer that they await further writings, meaning that they want to study various dissents or concurrences before they decide what to do.

As justices circulate their opinions and revise them, many different opinions on the same case, at various stages of development, will be floating around the Court over the course of several months. Because this process is replicated for each case the Court decides with a formal written opinion, it is possible that scores of different opinions may be working their way from office to office at any point in time.

Justice Blackmun used circulation (or log) sheets to keep track of opinions in each case. Here's an example, from Harris v. Forklift Systems, No. 92-1168.

Eventually, the final version of the opinion is reached, and each justice expresses a position in writing or by signing an opinion of another justice. This is how the final vote is taken. When all of the justices have declared themselves, the only remaining step is for the Court to announce its decision and the vote to the public.

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