Monday, May 23, 2022

SCOTUS Has Only Itself to Blame ...

... for people jumping to conclusions about justice Samuel Alito's "draft opinion" in Dobbs v. Jackson Women’s Health Organization.

The Court itself claims that "justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work. Although the document described in yesterday’s reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case."

But at least some point previously, per a number of sources (including Bob Woodward's The Brethren), that's not how it worked.

First there was a decision.

Then there were opinions.

A majority opinion, with authorship assigned by the Chief Justice (or, if the Chief Justice was on the losing side of the vote, the senior justice on the winning side), and any dissenting or concurring opinions.

For example, in Roe v. Wade, the justices first voted to overturn the Texas abortion law, then Chief Justice Warren Burger "assigned [Harry Blackmun] the task of writing the majority opinion" justifying the ruling.

Instead of whining that a draft opinion being leaked is a "betrayal," the Court should be transparent as to its procedures. In fact, it should live-stream its internal debates and its votes.

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