I couldn’t recommend enough Bill Kristol’s 90-minute interview with Justice Alito. The interview touches on his path to the Supreme Court (that time when his daughter told him “Andy Card from the White House called”), how cases are decided, why Justice Alito has often dissented in First Amendment cases, why he dissented from the majority’s “post-modern” dissent in Obergefell, and why (alas) he picked the Phillies over the Yankees. The transcript of the interview is here.
One of the more revealing aspects of the discussion focused on how a case goes from arguments to conference to decision, and how far backwards Justice Alito will bend before he fractures and issues dissent.
First, Justice Alito said “in the typical case,” the Justices don’t talk before arguments.
In the typical case, I will not talk to any of my colleagues about the case before we hear the argument.
Importantly, he stresses this is “generally not done,” leaving open the possibility that it is done sometimes.
There’s no rule against doing it, but it’s just generally not done as matter of tradition or practice or efficiency.
But, the clerks do chat:
On the Supreme Court, the law clerks are very free to talk to each other so my law clerks usually have a sense of what the law clerks in the other chambers are thinking about the case but that’s not necessarily the same thing that the Justices are thinking about the case.
Second, Justice Alito describes the conference process:
The procedure at the conference is pretty formal. The Chief Justice will start and he’ll say, “Okay, the first case is Jones v. Smith, and this is what it’s about and this is what I think we should do. I think we should affirm; I think we should reverse.” … We have a rule that nobody can speak a second time until everybody has spoken once. So we make the complete circuit.
This is a point I got wrong in Unprecedented, based on some inaccurate information I received. I wrote that the Chief voted last at conference. This made for a dramatic scene with the Chief’s fluctuating vote in NFIB coming last. Alas, I was incorrect. If the book ever gets to a second printing, I’ll fix it.
Third, Justice Alito stressed the importance of taking good notes at conference:
. So we have to take – we all take notes. And it’s pretty important to take good notes, particularly if you’re going to be assigned the opinion because you need to try to remember exactly what at least four of your colleagues think about the case and if you draft an opinion and you circulate it, you want at least four justices to agree with you or else it’s not going to be the opinion of the Court. It’s important to either have a good memory of what was said or take good notes.
Fourth Justice Alito describes what happens if there is not a unified five-vote bloc:
But in any event we go around the table and once we’ve made the complete circuit, usually we’ll know how the case is going it be decided and the basic rationale of the case. Sometimes after we’ve gone around, well, the worst case in terms of efficiency is where there isn’t a majority for any judgment. There might be three votes to affirm, three votes to vacate, three votes to reverse. So then we have to try to see if there is some position, there’s some judgment that at least five could agree on. That’s pretty infrequent, that happens pretty infrequently.
But more frequently, once you’ve gone around it’s not clear that there is a rationale that five will agree on. There may be, let’s say, six-one to affirm but three-one to do it on one ground and three-one to do it on another ground. So again you have try and find sort of the least-common denominator, something that five would agree on. And then sometimes if particularly, if it’s a more controversial case, someone may want to answer something that was said by someone who spoke later so there may be a little bit of back-and-forth debate but it’s not an open-ended discussion, and it doesn’t go on for a very extended amount of time.
Fifth, Justice Alito discusses the phenomenon of equal assignments–which SCOTUS haruspices use to predict the authorship of opinions.
Not unless that’s the Friday at the end of the two-week session. So at the end of two weeks, usually we will have heard 12 cases, and Friday afternoon, an opinion assignment list will come around. So of the 12, we will almost always get at least one, and then three Justices will get two. So at the end of the year, basically, we’ve all received about the same number of opinions.
Sixth, Justice Alito speaks to the “join” process:
And what I hope is that I will very quickly receive eight memos saying, “This is perfect, you know, don’t change a word.” And it doesn’t always work out that way. …
What I will receive is a memo indicating whether that Justice is going to join the opinion, and I may get a memo that says, “I will join if you make this change and this change and this change.” Or “I join your opinion but I suggest that you make certain changes.” That would be leaving it to the discretion of the author. Or I may get a memo saying, “In accordance with my vote at conference, I’m going to dissent.”
Seventh, during conference, the Justices take an “inventory” of circulating cases:
On the Friday conference, one of the things we do is to do an inventory of the cases where the opinions are circulating. So if I would have circulated an opinion, we’ll go through the list and sometimes at that point someone will say, “I was in the majority at conference, but on the vote, but I’m going to wait and see what the dissent says.” So sometimes that will happen.
Eight, Justice Alito speaks to the phenomenon of one Justice flipping a majority opinion–the votes are not final until the opinion is announced.
And occasionally a decision will flip, you know, maybe once a term or so. Something that was five to four one way ends up being five to four the other way. Someone who was in the majority reconsiders after reading the dissent, thinking about the case, and so it’s not the most efficient thing, but it can happen.
I think this year Justice Thomas broke off Justice Scalia’s opinion in Walker v. Sons of Confederate Veterans and made Justice Breyer’s dissent into a majority opinion.
It’s possible a Justice could revoke a “join” just before a decision is to be delivered.
The votes are not final until we go out on the bench to announce the decision. So in theory, on a, let’s say, on a Monday morning when a certain case is ready to be announced someone in the majority could say, “Something came to me over the weekend and I realized my position is wrong and I’m switching my position,” and that’s going to switch the decision.
But that hasn’t happened while Justice Alito was in office.
It hasn’t happened that way, during my time but it could.
Ninth, Justice Alito explains he does not “know of any instance” where the Justices traded votes.
It’s different from what I imagine takes place and is considered to be proper in a legislative body where someone could vote for something that a person doesn’t really believe in in exchange for getting a vote on something else. I don’t know that that’s considered to be unethical behavior by a legislator. …
But on a court, you can’t. You know that’s improper, and I don’t know of any instance where it’s been done. So you can’t trade your vote.
Tenth, Justice Alito talked about how far he was willing to “bend” before breaking off an issuing a dissent:
And I don’t think any of us would actually sign onto something that we don’t believe in. But we are often required to sign on to something that is not exactly what we would prefer. It becomes a hard – one of the hardest things for an appellate judge. It was hard when I started, and it’s still hard sometimes to figure out how far you should bend before you say, “I can’t go any further.” So if someone circulates a majority opinion, and it’s not what you would have written, and you don’t like certain aspects of it, maybe you don’t like the language, how far can you go?
For the purpose of making a majority or for the purpose of just not writing another meaningless separate opinion, how far can you go before you say, “No, I can’t go any further?”
Eleventh, the former Circuit Judge realizes how difficult these fractured opinions are to follow, but insists that at some point, he cannot join an opinion.
It’s a hard line. As a former consumer of Supreme Court opinions when I was on the Court of Appeals what I wanted and what I think all the lower court judges, what all the parties want, the lawyers want, is a pretty clear rule so it’s nice to have a majority opinion. It’s difficult when you have to put together opinions and try to figure out what the holding is.
But on the other hand, sometimes I may get the draft of a majority opinion and I agree with the bottom-line, or it could be a dissent, I agree with the bottom-line and the basic argument, but there may be paragraphs that are based on past decisions from which I’ve dissented. And so it’s kind of hard to, you know, I accept the fact that this case was decided and it’s binding on me, but I still think I was right on that case and it’s hard to sign on to something that is enthusiastic about a position that I thought was incorrect. There are a lot of very hard lines to draw.
What fascinating insights into the opinion-writing process!