In a candid new interview, Supreme Court Justice Samuel Alito has shed light on how America’s highest court actually makes the decisions that often affect so many people.
Alito explained the seemingly mysterious process in a taped interview with William Kristol, editor of the conservative Weekly Standard.
Here’s how the process works, per Alito: The Friday after an oral argument, the justices will meet to talk about the cases from that week. Chief Justice John Roberts speaks first, explaining how he thinks the court will vote. The justices go around the table in order of seniority, and no justices may speak a second time until everybody has spoken once.
“We go around the table, and once we’ve made the complete circuit usually we’ll know how the case is going to be decided and the basic rationale of the case,” Alito said.
Alito added, “It is not an open-ended discussion, and it doesn’t go on for an extended period of time. … For better or worse, that’s how it’s done.”
After the justices vote, the most senior justice in the majority assigns the opinion. That justice then circulates it to every justice for feedback. The dissents are circulated, as well. Sometimes, Alito acknowledged, justices change their minds after reading those dissents.
For example, it was widely reported that Chief Justice John Roberts initially sided with conservatives to gut President Barack Obama’s signature healthcare law back in 2012. Of course, he ultimately sided with the liberals and saved the law. Alito doesn’t appear to be a fan of flip-flopping.
“Occasionally, a decision will flip, you know, maybe once a term or so,” Alito said. “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 … It’s not the most efficient thing, but it can happen.”
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