The justices spent two serious and somber hours discussing the case in open court on Wednesday. Due to Covid restrictions, only a few journalists, law clerks, court staff and the spouses of Chief Justice John Roberts
and Justice Stephen Breyer
sat inside as the case was argued. (Sonia Sotomayor
was the only justice wearing a mask.)
Outside, protesters marched, prayed or used bullhorns to share their viewpoints on a sidewalk at the foot of the court’s 252-foot-wide plaza. Live audio of the proceedings was available on the court’s website for all those seeking to follow along.
Now, only the justices and their law clerks will know which way the dispute is headed and they will likely cast their initial votes on Friday at conference — in the same manner and order as they would any other case.
In the book-lined conference room off Chief Justice John Roberts’ chambers, the nine justices will take their seats in order of seniority.
Only the justices are allowed in the room, and if anyone else knocks on the door with a message, Justice Amy Coney Barrett, as the junior-most justice, is charged with responding. She also will keep a tally of the votes.
If past is precedent, Roberts will go first and explain his thinking. At oral arguments Wednesday, he seemed to broadcast which way he thought the case should go. He signaled that he was ready to uphold the Mississippi law that bars abortion after 15 weeks of pregnancy. He also suggested the court could stop there and decline to address Mississippi’s request to take the momentous step of overturning Roe altogether.
The discussion will continue in order of seniority. No one is allowed to speak twice until everyone has spoken once.
Next up will be Justice Clarence Thomas
. He is the only justice who has publicly stated in a written opinion that he thinks Roe should be overturned.
Then Breyer, the court’s senior liberal, will speak. His questions meandered on Wednesday with a professorial tone, and at one point he seemed to be addressing the public listening in instead of tackling the arguments put forward by Mississippi. “I hope everybody reads this,” he said, to no one in particular, as he read aloud a case decided in 1992.
Justice Samuel Alito is next in seniority and at oral arguments seemed to consider Roberts’ argument about pushing back the viability line. But he made other comments suggesting he disagreed with Roe, referring to the fetus as having an “interest in having a life.”
Sotomayor was the most animated at oral arguments defending Roe. She said if it were overturned now, after 50 years, the public might think the court — with three newly appointed members — was acting politically.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Sotomayor said.
She was cut off at one point by Roberts after a line of inquiry that extends five pages over the transcript. When Roberts completed his line of questioning, she jumped right back in. “May I finish my inquiry?” she asked, and went on to suggest that if the court were to strike Roe, other opinions concerning the right to contraception and same-sex marriage might be in jeopardy.
The third liberal with Breyer and Sotomayor, Justice Elena Kagan, can often land the fiercest questions and in past cases has urged her colleagues to tread extremely carefully before overturning precedent. But Kagan seemed slightly subdued Wednesday. That might be because while the justices were discussing the Mississippi law for the first time, they’ve been discussing a Texas law for three months behind the scenes that bars abortion at about six weeks after conception. Kagan may have chosen to hold her fire for strategic reasons.
The three nominees of former President Donald Trump — Justices Neil Gorsuch, Brett Kavanaugh and Barrett — will speak last at conference because of their seniority. They were all younger than 10 when Roe was argued and decided.
Gorsuch seemed ready to side with Thomas, but it was unclear whether Kavanaugh and Barrett might join the chief justice in a middle-ground position.
After the conference, the justices will retreat to their offices and the majority opinion will likely be assigned — the senior-most justice on each side gets to assign it.
Drafts and drafts and drafts
The justices operate their offices like separate law firms and don’t all follow the same procedure when it comes to drafting opinions.
Roberts said at a 2017 appearance in Lancaster, Pennsylvania, that he starts by writing out his thoughts in longhand and that it wasn’t unusual for an opinion to go through 25 drafts. He said the process in his chambers was to conduct a “table read,” where he sits with his four clerks to go through each opinion sentence by sentence before it is finally circulated.
Kagan, meanwhile, told an audience at Northwestern University in 2015 that she has her clerks draft opinions, then she starts her own new document and uses the clerks’ work for guidance. She said that when she finishes, all her clerks weigh in over rounds of discussion.
“Their job is to improve everything about my opinion,” Kagan said.
Earlier this year at a public appearance with businessman David Rubenstein, Breyer said he assigns one or two clerks to write a memo to cover a variety of points, then he takes it up and writes his own draft.
All of this happens, of course, as the court considers other cases on far-ranging topics from a closely watched Second Amendment case to bankruptcy law disputes that rarely make the front pages.
Over the coming weeks and months, drafts of majority opinions will circulate between chambers and justices will likely make suggestions that they think would be necessary to secure their votes.
It would not be unprecedented for a justice to change his or her vote during the process. Roberts famously switched his vote
and sided with the court’s four liberals to save Obamacare in 2012, well after the drafting process was underway.
Sometimes a final opinion does not at all reflect the sentiments expressed during oral arguments. But the public will be brought back in only when the final decision is released, likely late spring or early summer.