What makes a SCOTUS opinion the "Majority Opinion?"

As I understand it, when the Chief Justice is in the majority, he assigns the opinion to someone in the majority. When the Chief Justice is in the minority, the most senior member of the majority assigns the opinion. I heard somebody mention that a 6-3 vote to uphold the Patient Protection and Affordable Care Act tomorrow could be as likely as a 5-4 since Roberts could switch sides to control who gets to write the opinion.

But what is the limit on this? What if the Chief or most senior member selects someone to write the opinion that the majority disagrees with? Does it carry weight since it’s the official “majority opinion” or would an alternate opinion carry more weight if a greater portion of the majority concurred?

Would someone really do that?

Please forgive my naivete, but are Supreme Court justices really so petty that they might change their vote simply to provide someone (or even himself) with the publicity of being the one who takes the opinion of one side and puts it on paper?

It’s not a publicity issue. The majority opinion is the one cited as precedent, so if there’s a majority in favor of a particular result regardless of the Chief’s vote, and if there are different lines of reasoning that can be used to justify that result, and if one line of reasoning is more in line with the Chief’s judicial philosophy or makes the case more manageable in terms of future results, then it can make sense for the Chief to switch sides to ensure that the opinion cited as precedent is the one he wants.

It’s hard to be any more concrete than that because I’m not well read on the case, so I’m not sure what Roberts’ alternative reasoning might be or how it would differ from the majority’s, but there are theoretically sound legal reasons for him to consider that course.

To answer your question, “The Brethren” depicted Chief Justice Warren Burger as changing his opinion or miscounting the votes so he could assign the case.
But keep in mind that nothing is stopping other justices from writing their own opinions - or joining opinions other than the assigned one. It can, and does, happen that the assigned justice’s opinion doesn’t draw as many justices as another opinion. The original majority opinion can become the minority opinion or abandoned altogether.

I assume they talk and come to consensus. If a majority feel that X is the right decision, then it would be very difficult for the Chief to write it unless he went along with them… After all, ultimately he cannot order anyone to sign a decision they disagree with. He can assign the job to write an opinion, but the others have to sign that they agree with the arguements. If 4 Judges say “law upheld for reason X” and one says “Law upheld for reason Y, but not X” then its an ambiguous decision. They can expect a flurry of cases based on X or Y to clarify the ruling. SCOTUS is a master at kicking the can down the road when pressed.

They all have the nuclear weapon, to air the split openly if the Chief decides to throw his weight around, also knowing that ultimately too nasty a confrontation will end up as fodder for impeachment hearings - which means that the nuclear weapon has to be used with an eye to how Congress (and public opinion) will see it.

So they all have an incentive to observe decorum and behave.

Why wouldn’t a chief switch if he’s going to lose anyway. He exercise privilege to write the opinion,could slip some text into the ruling that may open up oppportunities to “clarify” the judgement in future cases… but none of these are dummies, so it won’t be too blatant or they won’t sign it.

Also, yes, you dont get to the top of too many things without some ego. These guys have to be looking at their place in history. Twisting logic to meet partisanship is possible, but they recognize that it will be their legacy that they destroyed the last reliable institution of the government if they take that too far; they are not going to ignore precedent, but often the supremes realize that sometimes there are ideas whose time has come - or gone - and precedent will be overturned. Generally, that happens with strong consensus.

From what little I’ve read about how it operates, the Supreme Court operates as the ultimate committee.

There is always a preliminary discussion of each case after oral argument in which the Chief Justice goes first followed by the other justices by seniority. After their discussion of the case each justice announces the disposition that he or she favors and that is when the assignment is made. But, the justices are free to change their mind. If they find the opinion of the assigned justice to be unpersuasive they are each free to write their own. It sometimes happens that one of these opinions attracts enough support to become the majority opinion.

Hmmm… sort of like if someone were to approve Obamacare (as a tax) in return for putting limits on the range of the commerce clause for future laws.

Opinions are circulated before they go out the door. If justices decide that the author’s written opinion isn’t what they agreed to, they can write their own concurrance explaining how their view differs, or they can refuse to join the opinion and only concur in the judgment.


I’m not sure if you’re suggesting that Roberts changed sides so he could write a majority opinion that still limited the Commerce Clause, but it was a 5-4 decision. He would have been in the majority either way. There was no need for him to rule the mandate constitutional if his goal was to write a majority opinion limiting the Commerce Clause.

No, I think there are 350 million opinions but Only one person knows the real reason. One common thread seems to be this: that Roberts recognized the danger to the court. In an earlier decision, for example, the court decided the interstate commerce clause allowed the Feds to prohibit the state-legal cultivation of personal medical marijuana (and wheat…). One dissent said, this effectively therefore there are no limits on federal power if that twisted decision stands.

When Obamacare first passed, general consensus was that it was no more of an ICC stretch than much that had gone before. More recently, the consensus seemed to be that if the court ruled against it, that would be along partisan lines. Roberts may have opinions, but he is very smart and recognized if partisanship became the main factor in decisions, why bother with a supreme court? It would destroy the court. It would only be a matter of time before FDR-style packing threats, partisan impeachments, etc. became standard.

So I think Roberts was doing two things, mainly - saving SCOTUS (good movie title?) and signaling that decision will not be dominated by partisanship. If it also signals that judicial activism is muted too, well, even better.

And if it it means Roberts is now in favor of home grow-ops, well, let freedom ring!