Legal Expert breaks down process of a SCOTUS Justice writing a draft opinion

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Published: May. 4, 2022 at 10:23 PM CDT
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PENNINGTON, New Jersey (KBTX) - Shockwaves are reverberating throughout Washington and the nation after a leaked document showed the US Supreme Court may be planning to overturn the landmark Roe v. Wade abortion decision. The leak regards a pending case of Mississippi State law that bans abortions after the 1st 15 weeks of pregnancy.

Lynne H. Rambo, Professor Emerita at Texas A&M University School of Law, joined First News at Four to discuss the possibility of the case being overturned and the significance of the author.

While decisions have been overturned by the Supreme Court in the past, it is the exception rather than the rule.

The process of writing an opinion is that the nine justices are in a room and they speak once going down from the Chief Justice to the most senior all the way down to the most junior and they explain their thinking and then vote. The chief justice votes first and then they vote senior to junior again, and at the end of that they have a ruling for one side or the other. 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 we assume that the chief justice is planning to rule for Mississippi, which I do think he is, you would expect him most of the time to appoint himself the writer of that opinion,” said Rambo.

The leaked draft opinion was written by Justice Samuel Alito, not Chief Justice John Roberts.

She does explain that the senior justice wouldn’t always be the one to write the opinion, but says that it happens, “more than half the time on a case this large, so it is very notable that he is not the opinion writer.”

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