I am interested in the mechanism by which the Supreme Court casts votes on a ruling.
Do they do it by secret ballot? Or is it as simple as a show of hands?
Does a Justice have the opportunity to change their vote based on votes of other Justices?
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8Secret ballot? We know how every justice voted on every case before the Supreme Court since the founding of the republic.– Michael BenjaminMay 16, 2019 at 18:28
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2I understood that, but I wondered if the initial vote was by secret ballot. Then, once the decision was made they would reveal who voted for what. My interest was in whether there was any concern over how one Justice voted influencing the vote of another.– Barnaby GoldenMay 16, 2019 at 18:36
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1Fair enough. That info would have been useful in the question.– Michael BenjaminMay 17, 2019 at 2:06
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No, the justices votes are a matter of public record.– Bob Jarvis - Слава УкраїніMay 17, 2019 at 2:20
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Fair point Michael_B.– Barnaby GoldenMay 17, 2019 at 7:07
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1 Answer
Does the US Supreme Court vote using secret ballots?
No. The procedures used by the Court are given here: Forming opinions.
Educational resources, provided by the Court are given here: Supreme Court Deliberations.
Or is it as simple as a show of hands?
No.
At the end of a week in which the Court has heard oral arguments, the Justices hold a conference to discuss the cases and vote on any new petitions of certiorari. The Justices discuss the points of law at issue in the cases. No clerks are permitted to be present, which would make it exceedingly difficult for a justice without a firm grasp of the matters at hand to participate. At this conference, each justice—in order from most to least senior—states the basis on which he or she would decide the case, and a preliminary vote is taken.
The votes are tallied, and the responsibility for writing the opinion in the case is assigned to one of the justices; the most senior Justice voting in the majority (but always the Chief Justice if he is in the majority) makes the assignment, and can assign the responsibility to him- or herself.
It would be most difficult to assign the responsibility for writing the opinion without knowing how each Justice voted.
Would a Justice have the opportunity to change their vote based on votes of other Justices?
Yes.
Votes at conference are preliminary; while opinions are being circulated, it is not unheard of for a justice to change sides. A justice may be swayed by the persuasiveness (or lack thereof) of the opinion or dissent, or as a result of reflection and discussion on the points of law at issue.
In addition to the Court's opinion (the majority opinion), others may be written.
A justice voting with the majority may write a concurring opinion; this is an opinion where the justice agrees with the majority holding itself, but where he or she wishes to express views on the legal elements of the case that are not encompassed in the majority opinion. Justices who do not agree with the decision made by the majority may also submit dissenting opinions, which may give alternative legal viewpoints.
answered May 16, 2019 at 18:15
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My understanding is that concurrence is basically a Justice agreeing in principle with an opinion, but adds additional reasons OR believes that the Opinion was reached in a different manner completely (The first, "Justice so and so is correct, but neglects this reason". The second is "Justice So and So is correct, but for the wrong reasons... here are better reasons.")– hszmvMay 16, 2019 at 18:44
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7@hsmv The latter is often expressed as "concurring with the judgment" (implying a concurrence with ONLY the judgment) or the famously frustrating "concurring in part and dissenting in part." May 16, 2019 at 19:00
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8@MichaelW. Like Columbia Law School's Law Revue title this year, "I FOUGHT THE LAW and the Judgment was Affirmed in Part and Reversed in Part and Remanded for Reconsideration on the Merits Not Inconsistent with the Ruling in This Opinion." May 16, 2019 at 20:19
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1@MichaelW. Out of curiosity, why is "concurring in part and dissenting in part" frustrating? On cases that bring up multiple questions of law, it seems pretty common for justices to agree with the majority opinion on one point while disagreeing with it on another.– reirabMay 16, 2019 at 23:15
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2@reirab: Perhaps because only those parts of the main opinion that have a majority behind them are precedent that binds the lower courts, and a partial concurrence means there's more reading you need to do to figure out which ones they even are. (The court's published opinions does not set them out with differing typography, for example). May 17, 2019 at 0:55