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Culture War Roundup for the week of April 15, 2024

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I don't know enough about the American legal system, until it's my headache, but how much does seniority matter in the SC?

Are the new "young" judges put on the back bench (metaphorically)? My understanding is that they're all nominally equal, so what does it take for one to establish themselves like Thomas did and get taken seriously. How much does their opinion matter, and how is that sausage made?

The other responses you've got are mostly correct, but I'll elaborate on a few points. I've written a bit about the process before here.

@VoxelVexillologist is correct to point out Roberts' automatic seniority as Chief and its consequences, but the case is complicated by the fact that the right-ish portion of the Court has six Justices, not five. Roberts is certainly inclined to write more moderately than Alito, but if he writes too moderately, Thomas/Alito/Gorsuch/Kavanaugh/Barrett can form a majority without him. Dobbs is an exceptionally high-profile example of exactly that.

Recusal is more of an issue for a new Justice, but still pretty rare unless the new Justice was a very recent Solicitor General (or other high-ranking member of the Justice Department, including the AG). The Solicitor General is the number two guy at Justice and has the special responsibility of representing the US in court--he usually does so personally before the Supreme Court, and delegates to staff in lesser cases--so he'll often be involved in litigation strategy of multiple cases that later appear before the Supreme Court.

Each Justice has exactly one vote. The way any given Justice may punch above or below his weight is based entirely on his personal relationships with the other Justices (this is much more likely to be a negative factor; you don't get to the Supreme Court with a weak ego) and the persuasiveness of his arguments, most often in writing. My personal guess is that Thomas, Kavanaugh, and Barrett are very slightly more advantageously placed than average, and Roberts and Jackson are slightly less than average.

@pigeonburger is right about how the majority opinion of the Court is initially assigned, but not the dissents. All dissents and concurrences are not assigned; they are written by any Justice who chooses to do extra writing. There was a recent case where Kagan registered her dissenting vote on the outcome, but neither wrote a dissent herself nor joined another opinion, so her exact reasoning is unknown. This is perfectly valid; it's just much more common that Justices are inclined to explain themselves, both to their colleagues and to posterity.

One point often missed is that in a given Term--and indeed, in each month--every Justice writes as close as possible to exactly the same number of majority opinions. This may seem unintuitive, but remember that the most common voting outcome in any given case has always been 9-0, and still is. Naturally, the more conservative Justices will be more likely to write for the majority in controversial decisions today, but that just means that Kagan, Sotomayor, and Jackson are more likely to be assigned the 8-1 or 9-0 cases. This practise is intended to make sure that each chambers is carrying its weight in terms of the essential work of the Court. As I said above, though, dissents and concurrences do not factor into load-balancing--those opinions are entirely discretionary on a Justice-by-Justice basis, and are purely extra work.

I appreciate the exhaustive overview!

Do dissents carry any weight as legal precedent, or the rare instances where a new Supreme Court overturns the established precedent intentionally?

Both dissents and (except in unusual cases[1]) concurrences have zero legal weight as precedent, though this needs a little further unpacking.

Formally, the Opinion of the Court is binding on lower courts, and is precedent to be followed or rejected by future Supreme Courts. The wiggle room is that a lower court may argue that an existing Supreme Court decision is distinguishable from the current case because of [reasons]; that explanation may vary wildly in ingenuousness. The Supreme Court has a fancy legal doctrine called stare decisis, which means that it's more important to be consistent than correct, though some Justices (Roberts) are bigger fans of the doctrine than others (Thomas).

Every opinion of any type can affect future legal development to the extent that the arguments therein are persuasive to future Courts. If a Court decides that a prior decision was in error, it may overturn the precedent by a simple majority, just like every other decision. Often, the dissents in the original case may provide the rationale for a later reversal, though the Court tends to change its institutional mind by individual retirement and replacement, rather than a particular Justice reversing his earlier opinion (though that too has happened).

Also, there is no formal difference between a 9-0 decision and a 5-4 decision. Both carry the full authority of the Court, so a 5-4 decision may overturn a 9-0, hypothetically. Informally, though, every judge can do the most basic of math and realize that a 9-0 decision is less likely to be overturned in a future case than a 5-4.

[1] You can have a situation where the Court splits 4-2-3 or the like on a given case, where the 4 and the 2 may agree on the outcome of a case (and the 3 disagrees), but they do not agree on a reasoning. The case would be resolved as a 6-3 decision as to the outcome, but with no reasoning, as no opinion carried a majority. That said, the lower courts would treat the 4 opinion as a strong hint, since it's the closest to a majority, even though the logic is not formally binding. The Justices try to avoid this outcome, if possible.

You can have a situation where the Court splits 4–2–3 or the like on a given case, where the 4 and the 2 may agree on the outcome of a case (and the 3 disagrees), but they do not agree on a reasoning. The case would be resolved as a 6–3 decision as to the outcome, but with no reasoning, as no opinion carried a majority.

Marks v. United States:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, "the holding of the Court may be viewed as that position taken by the Members who concurred in the judgment on the narrowest grounds".

That generally would be the two-justice opinion.

It might be, but not necessarily. In my example, it's impossible to tell, because I didn't assign rationales to any of the positions, so the two-Justice opinion might be broader or narrower than the four-Justice opinion. "Narrowest grounds" means in context 'the opinion that would control in the fewest potential future cases.' Via your link, Memoires, the earlier case referenced in Marks, was an example of a two-Justice expansive opinion added to a three-Justice narrower opinion to form a five-Justice majority (plus Stewart writing for himself to make six), and Marks indicates through your quoted language that the narrower three-Justice opinion is controlling.

You're correct that my "but with no reasoning" was in error, though, and thanks for the correction.

but how much does seniority matter in the SC?

Formally, I believe the task of writing the decisions is given out by the chief justice (if in the majority) or the most senior justice. I've seen some suggest that Roberts keeps some of the potentially-spicier cases for himself and writes more moderately than, say, Alito would. There are also fairly often cases where a new justice has to recuse themselves because they either previously judged the case on a lower court, or sometimes argued for one side. Neither of those is a particularly large concern, I would think. Their opinions are, to my knowledge, formally given equal weight otherwise.

I don't know about informally, where I suspect it matters for at least some time for a new justice.

Americans can correct me if I'm wrong but from what I hear, their votes are worth the same. Seniority matters as to who decides who gets to write opinions. The most senior member of the majority (which is automatically the chief justice if he is in the majority) assigns redaction of the opinion to one of the members of the majority. Same happens for the dissenting opinion (most senior judge in the dissent, automatically the chief justice if he is dissenting with the majority, choses who writes the opinion).

So seniority is important, but not THAT important. What does matter though is that their opinion is taken into serious consideration by other judges. Ideally, a judge to the Supreme Court should never be a blindly partisan hack, but in practice it can (very charitably) said that they are at least preselected for an extreme adherence to one school of thought with regard to how flexible the Constitution should be. But a particularly eloquent opinion might be able to sway swing votes or even peel off a justice or two from the other bloc, so experience and quality as a justice matters.

The reasoning in opinions also impact law students. Scalia’s textualism became much more pronounced when lawyers who read his opinions in law school came to dominate the practice.