What even is a draft opinion? Here's how the Supreme Court's process works

May 3rd, 2022

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, Friday, April 23, 2021. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool)

The Supreme Court has confirmed the authenticity of the draft opinion Politico published Monday night and is pursuing an investigation into the leak. But the court is stressing that the opinion, which calls for overturning Roe v. Wade, does not yet equal the law of the land.

“Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work,” it said in a Tuesday press release. “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.”

The court’s internal deliberations may be confidential, but the process of getting to a final ruling isn’t entirely a secret. Here’s what we know about how the nation’s highest court gets from consideration to conclusion.

First come the arguments, then the private conferences

After oral arguments end, justices typically discuss the cases with their law clerks to seek out different perspectives and form an idea of how they will vote, according to the U.S. Courts website.

Then the justices hold what is known as a private conference (there are two scheduled per week, on Wednesday and Friday afternoons) to actually decide the case. They typically start by discussing which potential new cases to accept or reject, and then turn to the cases they’ve heard since their last such meeting.

“According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have,” the U.S. Courts site says. “Each Justice speaks without interruptions from the others.”

The justices speak in descending order of seniority, starting with Chief Justice John Roberts. Then, in that same order, they each cast an initial vote.

Justices’ votes determine who will write the opinions

Once the votes have been tallied, the senior justice in the majority (either the chief justice or, if he dissents, the justice in the majority who has served on the court the longest) will assign someone to write the majority opinion.

If a minority of justices believe that the case should have reached a different outcome, the seniormost justice in that group assigns someone to write a dissenting opinion. Any justice can also write a separate dissent of their own.

And if a justice agrees with the decision but disagrees with the reasoning behind it, they may write a concurring opinion, which others have the option to join.

How a draft opinion becomes a final ruling

This is where the draft opinions come in, as the law website SCOTUSblog explains. The assigned justices draft and circulate opinions outlining their decision and their reasoning.

“The time it takes to finalize an opinion depends on several factors, including how divided the Justices are, which justice is writing the opinion, and the court’s schedule,” it says.

There’s always a chance that the draft opinion doesn’t end up looking similar to the final opinion, NPR legal affairs correspondent Nina Totenberg told Morning Edition, noting that this has happened numerous times.

A majority of justices must “sign onto” the court’s opinion before it can be delivered publicly, according to the U.S. Courts website.

“No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public),” it says.

All cases are typically decided by the time the court goes on summer recess in late June or early July. Other than that, there aren’t any rules around when exactly decisions must be released — but those that are unanimous tend to come out sooner than those that are more divisive.

There are unanswered questions about this case

So how exactly is this process playing out for the case in question? Politico’s reporting offers potential clues as well as puzzles, according to Totenberg.

Politico is reporting — citing an unnamed source “familiar with the court’s deliberations” — that four of the other conservative justices voted along with Justice Samuel Alito in the conference they held after hearing oral arguments in December.

Roberts’ vote is unclear, according to Politico, which said it’s also not known whether he will join an already-written opinion or craft his own.

Totenberg says that during oral arguments, Roberts seemed to suggest that he wanted to move slowly, upholding the Mississippi law (which bans abortions after 15 weeks) at the heart of the case and leaving the basic framework of Roe otherwise intact. She adds that the idea “got no takers” at the time.

“The question in my mind is whether he even assigned this opinion,” she adds, explaining that it’s possible that he endorsed the leaked draft opinion or that he disagreed. In that case, she says, the most senior member of the majority would decide who would write the opinion — and that would be Justice Clarence Thomas.

“And I can’t think of any reason why Thomas wouldn’t give himself this opinion,” Totenberg says. “There are still some mysteries to this, but I would be shocked if this were not an early draft of the opinion that will eventually come out.”

This story originally appeared in the Morning Edition live blog.