When reading about the Supreme Court’s hearing of the challenge to the constitutionality of “Obamacare”, I keep reading that the justices have “voted” already immediately after the oral arguments, but that their decision isn’t due until june.
What does this mean? Does it mean they’ve already decided which side has won the appeal, but they’re still coming up with their reasons? Does it mean they can’t change their mind about which side has won the appeal, but they can still change it about the extent of the victory (ie. whether the whole law is struck down or just the individual mandate)?
They have a preliminary vote to see where everyone stands. The chief justice will usually assign the opinion-writing job to someone who is in the majority group of this vote. Things can definitely change before the opinion is released. Sometimes the majority opinion becomes a minority dissenting opinion.
So the vote is essentially meaningless, except that it lets the judges see what the others are planning to do and potentially adjust their decision accordingly (not that they’re supposed to do that)?
Regarding the questions at oral arguments, there’s a lot of very experienced Supreme Court advocates saying that the questions asked boded very badly for the Obama Administration. Tom Goldstein of SCOTUSBlog, for instance, has acted on nearly 10% of all Supreme Court cases over the last ten years and he basically admitted yesterday on the Daily Show that he thought the Court was likely to strike down at least part of the law based on what was said in oral arguments.
The vote is very meaningful. As Crotalus said, the vote determines who gets to write the actual decision. That’s often a major consideration. The decision is made either by the Chief Justice or the most senior justice in the majority if the Chief is in the minority. For a case of this magnitude the Chief Justice will often reserve the writing to himself. How the decision is written, what arguments it makes, and how narrowly construed it is will determine whether any of the others will change their minds during the process and whether they will write their own concurring or dissenting positions. These do not affect the immediate decision but historically some dissenting opinions have have been influential over the future than the majority. It’s only a small exaggeration to say that the entire history of the court is a series of decisions overturning previous decisions.
There’s also the political considerations to deal with. The Court is very aware that it has lost an immense amount of prestige since Bush v Gore because it has taken on the appearance of a political body. It doesn’t like this and the ensuing series of 5-4 decisions along political lines hasn’t helped. I would bet that the last thing it wants is another 5-4 ideological decision on a case this major. My guess is that the decision will be written in such a way that it will allow a 6-3 vote even if that means such a narrow and technical argument that nothing is really settled. Some Justices will be more adept at doing this and that might sway the decision over who does the writing.
I don’t think there’s any prohibition on justices changing their decision. There’s nothing wrong with Justice Smith reading what Justice Jones wrote and saying “That’s a valid legal point I hadn’t considered before. I’m changing my vote and concurring with Justice Jones.”
But surely they don’t write anything for the vote? If so, all the justices would get to see at that point is which appellant the other justices will rule in favor of. So what I was implying was that a judge might think “I was happy to be the sixth in a 6-3 in favor of this, but it turns out I’d be the fifth in a 5-4, which I think would be too controversial. I’m going to change my judgment…”. That kind of thing.
How does the process work for justices reading each other’s judgments before publication then? When do the justices themselves find out - definitively - which way the case has gone?
It is a process. The justice writing the decision circulates it in draft form. Other justices may comment on it or grumble about it and then start drafting concurring or dissenting decisions. Or they might see the direction that was taken and say, OK, I can support this line of reasoning and change their vote. Or the writer may hear the comments and say, shoot I needed to have said that or refuted that and do a revision.
It’ll be quick this time, because the whole process has to play out by June. It’s hard to know exactly because in most cases nobody talks about it explicitly. We get some comments in memoirs and the like but nobody will know exactly what happens in this particular vote for a long time, if ever. All we’ll know is who signs their names to what. And that may change up until the last minute.
Chicago v Morales for instance, has no majority opinion, just a plurality, with some judges agreeing some parts of the opinion and not others, and with a bunch of concurring and dissenting opinions. It’s a real hoot.
I realize that this is to a large degree a subjective opinion, but do you have anything to back this up? Ideally statements (formal or informal) by Justices (that is, from ones on the Bush side of Bush v. Gore), but I’d even accept inferences from opinions, questioning or other sources.
But I ask, because everything I’ve seen where Scalia et. al address Bush v. Gore pretty much comes down to “I’ve got your legitimacy right here, punk.” accompanied by a vulgar gesture.
(I mean, I’d like to think the Supreme Court is becoming more worried about being respected by impartial legal minds, but I don’t see a whole lot of signs of it. Heck, based on some of the questions at oral arguments on the healthcare case, some members of the court seem to be going out of their way to *avoid *respect from legal minds. )
The catch is they may have made up their minds, but the real trick is explaining how the decision fits into the existing framework of precedent. If one were startng from scratche xamining the principles of the constitution, ACA’s manatory purchase rule may not be allowed. But up to now, there has been a lot of stretched interpretation of the Interstate Commerce clause - you can find all sorts of discussions.
Any decision has to explain, for example, why ICC allows congress to override state laws and forbid the cultivation of marijuana, or set quotas on grain production, or regulate unions… but not allow them to demand the purchase of medical insurance.
I suppose the element of pride and need for respect of their peers is what makes them justify any decision in such a way that it does not invalidate almost everytihng done previously.
I suppose the core question here is whether you have crossed some line in requiring everyone to do something (or penalize everyone for not doing something).
