After hearing oral argument on December 1, the justices of the U.S. Supreme Court began their deliberation and opinion-writing process. On the Friday following oral argument, the justices met in closed chambers to initially share their votes and reasoning. When this happens, each justice is allowed to state their case uninterrupted, and the justices go around the conference table one by one, in descending order of seniority. After each justice has stated their position and after further dialogue, the votes are counted and opinion-writing assignments are made. The most senior justice in the majority decides who authors the majority opinion, and the most senior justice in the minority assigns the dissent.

 

Then, the justices begin drafting the majority opinion, concurrences, and dissents. Any justice can write a concurrence or dissent (or partial concurrence or partial dissent) if they choose. The justices circulate their draft opinions with the other justices, soliciting feedback and sign-ons.  This process can involve extensive negotiation – especially in a high-profile, high-stakes case like Dobbs – such that the final products are published opinions that may look much different from the initial drafts. Often the majority opinion will become narrowed through the opinion-writing process, in order to gain the sign-on of a certain justice. Sometimes, there will be so much flux during negotiations that what was originally a dissent or concurrence will become the majority opinion for the Court!

 

Keep in mind, too, that the justices’ clerks and the public dialogue surrounding the case can also affect how the opinions are ultimately written. Because nothing is final until the ink is dry on the published, released opinion of the Supreme Court, the next several months are a critical time to continue covering the Dobbs case – and especially the Court’s deliberations – in prayer.