Preparing for Oral Argument
Once all the briefs are filed, the Justices, aided by their law clerks, prepare for oral argument. The specifics of that process are different for each Justice, but the basic elements are the same. The Justices themselves read the briefs submitted by the parties and likely at least some of the amicus briefs, especially those submitted by the United States government or by well-known organizations like the Chamber of Commerce and the American Civil Liberties Union. Law clerks review all of the briefs and may also recommend that the Justices read specific amicus briefs that are particularly substantive and non-repetitive.
Some Justices ask their law clerks to write a “bench memo” for each case, summarizing the issues, suggesting questions to ask or issues to explore at oral argument, and/or making recommendations about the outcome. Many Justices, whether they use bench memos or not, spend time talking with their law clerks about the cases before argument. By the time a case is heard at oral argument, the Justices and their law clerks have spent a lot of time thinking about the issues.
Oral Argument
Each case is traditionally allotted one hour for oral argument, with occasional exceptions for particularly complicated cases. Oral argument takes place in the courtroom of the Supreme Court building. No cameras are allowed, but the arguments are recorded. Past recordings and transcripts are available at Oyez.org. Transcripts, and recordings beginning in 2010 are also available at the Supreme Court’s website.
At the beginning of each argument, the lawyer starts by saying “Mr. Chief Justice and may it please the court.” After that, in the past, the lawyer might have been able to give an introduction, but the Justices might interrupt the lawyer early on. And they would continue to interrupt the lawyer—and each other—with questions.
Some oral argument practices changed when the Justices heard oral argument remotely during the pandemic, however, and some of those changes appear to be continuing now that the Court is back in person. During remote arguments, lawyers had two minutes at the beginning of their argument time to make introductory remarks without interruption. That practice is continuing. (The Court attempted a similar practice before the pandemic, but did not always stick to it.)
During remote arguments, instead of interrupting the lawyers and each other, the Justices asked questions one at a time, in order of seniority. The Court has not continued that approach, but the Justices do appear to be making more of an effort not to interrupt each other. And at the end of each lawyer’s time, the Chief Justice now gives each Justice the opportunity to ask one additional question. Finally, the Court began livestreaming oral argument audio during the pandemic and posting the audio the same day, and it has continued to do so.
Oral argument serves several purposes. First, and most obviously, it provides an opportunity for the Justices to ask questions. These questions may not be about the details of the case, which they have already studied, but might be, for example, about how other, hypothetical cases might come out depending on how the Court rules. The Justices press the lawyers to precisely articulate the rule of law they are seeking and to discuss its implications. Or a Justice might simply explain what is bothering him or her about the case and give the lawyers a chance to address that.
Second, in addition to seeking information or exploring the implications of an argument, the Justices often use their questions to communicate with each other. Oral argument is the first time that all of the Justices together discuss a case on the merits, so they often try to establish the strengths and weaknesses of different arguments through their questions.
Finally, oral argument is the only part of the process that the public gets to witness, even if only by listening to audio or reading press accounts. Before the pandemic, the public could attend oral argument, although seating was limited. The Court has not re-opened for public attendance, although credentialed members of the press are allowed to watch the oral arguments live.
After Oral Argument
After oral argument, usually later in that same week, the Justices have a meeting known as Conference. Only the Justices themselves are present at Conference; no law clerks or other staff are allowed. At Conference, the Justices announce how they plan to vote in the different cases. Although those votes are not binding, they help determine which Justice writes which opinions. When the Chief Justice is in the majority, he assigns the majority opinion. When he is not, the assignment is made by the most senior Justice in the majority.
Opinion Writing
The Justice assigned the majority opinion works with his or her law clerks to produce a draft. Some Justices have their law clerks do most of the writing, which they edit. Some Justices have their law clerks write first drafts that the Justices then substantially revise. And some Justices write their own opinions, asking their law clerks for assistance with research or other matters.
Once the majority opinion draft is ready, the authoring Justice circulates it to the full Court. At that point, any other Justice can decide to “join” the opinion, can request changes to the opinion before joining, or can decide to write a separate opinion. After the majority opinion circulates, any dissent will circulate as well. Sometimes, the dissenting Justice waits to read the majority opinion before writing, but sometimes he or she may have the draft ready to go as soon as the majority opinion draft circulates in the hopes of persuading other Justices to change their minds.
Depending on the case, the original draft opinion may ultimately be released more or less unchanged, or it may be substantially revised, especially if revisions are necessary to keep a majority of Justices on board. Sometimes, Justices agree with the outcome but not the reasoning, and so they might write separately for that reason. (An almost identical process occurs with the dissent.) And very occasionally, enough Justices change their minds to fully change the outcome of the case.
Everything that happens after oral argument, up until the time the opinions are announced to the public, is confidential. Leaks are rare, and a leak of a full draft opinion, as in Dobbs, is unprecedented.
Opinion Announcement
After all the Justices have decided which opinion they want to write or join, the Court releases the opinion to the public. No one but the Justices and Court staff know what cases will be announced at any particular time. The Court simply announces dates on which it will announce opinions, without saying which ones are coming. This practice means that courtwatchers and journalists never know if, on a given day, there will be a single simple opinion in a low-profile case, for example, or a number of important and complicated decisions. The Court almost always completes its work for each Term by the end of June.
Before the pandemic, opinions were first announced in the courtroom, in a process known as handdown, where the author of the majority would read a summary and occasionally a dissenting Justice would do the same. Only then would the opinion be released more widely, both electronically and otherwise. But since the pandemic, the Court has been releasing the opinions only electronically. When the Court fully re-opens to the public, it could return to its former handown practice.
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