Inside the Supreme Court – Its Role in Our Constitutional System

THE WASHINGTON FOREIGN PRESS CENTER, WASHINGTON, D.C.

MODERATOR:  Okay, all right.  Good morning, everybody.  Welcome to the Washington Foreign Press Center’s virtual briefing.  My name is Jean Foschetti and I will be the moderator today.  I am pleased to welcome our briefer, Georgetown University Law School Professor Susan Bloch, who will speak today on the topic “Inside the Supreme Court: Its Role in Our Constitutional System.”  Our briefing is part of the Washington Foreign Press Center’s Understanding America series.  As was mentioned in the briefing announcement, Professor Susan Low Bloch is the Reynolds Professor of Law, a former law clerk for Justice Thurgood Marshall, and the author of several books and numerous articles on the Supreme Court and the Constitution. 

A quick review of the ground rules for today.  This briefing is on the record and is being livestreamed.  We will post the video and transcript of this briefing on our website, fpc.state.gov, as soon as it is available.  The briefer is an independent expert, and the views expressed by briefers not affiliated with the Department of State are their own and do not necessarily reflect those of the Department of State or the U.S. Government.  Participation in Foreign Press Center programming does not imply endorsement, approval, or recommendation of their views.   

During the Q&A session, if you have a question, please go to the participant field and virtually raise your hand.  If you are called on to ask your question, we will unmute you and request you turn on your camera.  If you wish to be on camera for the entire briefing, please go ahead and do so now.  And lastly, if you’ve not already done so, please rename your Zoom profile with your full name and name of your media outlet so we can know who is asking questions. 

And with that, I will turn it over to Professor Bloch for her remarks. 

MS BLOCH:  Thanks, Jean.  It’s great to be with you all.  I thank you for inviting me to talk about my favorite subject, the Supreme Court.  My talk today has three parts.  First, I’ll give you a quick overview of how the court works for those of you who are less familiar with its inside track.  Second, I will talk about some of the incredibly interesting cases that are on the docket this term, including, of course, the fate of Roe v. Wade – sorry – and finally, I will address the hot topic of the day:  Is the court too political and should we change it in some way?  And if so, how? 

So let me start – and then I will open the floor for questions.  First, let me start with how the court works.  The court – the Supreme Court has considerable discretion over its docket.  It – it only agrees to hear the cases that it thinks are important.  It takes four justices, four of the nine, to vote to take a case.  In the jargon, the – we talk about the court granting certiorari. 

Once the court – once four justices or more vote to grant a case, the case then gets scheduled for oral argument, the parties write their briefs, and they make their argument.  Right after the argument – immediately after the argument – the Supreme Court meets in conference that week and decides the cases tentatively.  They each vote on how they will vote on the case, whether to affirm it or to reverse it, and on the basis of that tentative vote they decide who’s going to write the majority opinion and, if there’s a dissent, who will write the dissent.  And then the justices go off and start writing.   

Nothing is final, nothing is published until every justice has joined an opinion and formalized his or her vote, and that generally takes three to four months.  I can go into more detail on that, but as Jean mentioned, I clerked for Thurgood Marshall, so I had an inside view of all this.  But it’s very interesting, and there has never been a leak until this year.  There even – I mean, there hasn’t even been a leak of how the court has voted, but there’s never been a leak about giving the actual draft of the opinion.  I can talk more about that later. 

Let me tell you something about the docket that the court has for this term.  Obviously, the big blockbuster is what will happen with Roe v. Wade, and there are – the big case is the Mississippi case.  There’s also a Texas case, but all eyes are on the Mississippi case.  Mississippi prohibits an abortion after the 15th week of pregnancy.  Roe v. Wade and the cases that have built on Roe say that there can’t be a ban on abortions – in other words, abortions must be legal – before viability, before the fetus could live on its own outside the womb.  And that’s usually thought to be around 24 weeks.  So the Mississippi ban that takes – that bans abortions after 15 weeks clearly conflicts with Roe, and Mississippi is asking the Supreme Court to overturn Roe. 

The case was argued on December 1st, and we expect an opinion any minute.  The draft opinion that got leaked – and by the way, there has never been a leak of a draft opinion in the court’s history – suggests that the court is ready to overturn Roe, and that would be quite a seismic shift.  I’ll talk more about that in a few minutes. 

Let me just tell you couple of the other big (inaudible) that are on the docket.  There’s also a Texas case that bans abortion after there’s a heartbeat, and that – the court will just – all eyes are on the Mississippi case.  On the – actually (inaudible) about the draft opinion – it looks like the court is about to overturn Roe.  There have been three conservative justices appointed by Trump, and Trump said that he wanted justices who would overturn Roe; and then there’s Alito and Thomas, who are – have been on the court, but they had been opposed to Roe for a long time. 

The significance of the Trump appointees is that it has made what Chief Justice Roberts does basically irrelevant.  He was – he had been, before the Trump appointees, especially the one who took Ruth Ginsburg’s place – before that, the chief justice had a – he could have been – he was always the fifth vote and essential.  He’s no longer essential.  The conservatives now have five solid votes, and it doesn’t really matter what Chief Justice Roberts does.  He – Justice Roberts – does not like overturning precedents.  He was the – sort of the stalwart vote that kept the court from overturning Roe.  Now, with six – with five conservatives without Roberts, it looks like the court is going to overturn Roe, and we can talk more about the significance of that. 

Let me just tell you a little more about some of the other cases on the docket.  There’s a big Second Amendment gun case coming out of New York.  The court has not had a big Second Amendment case since 2008.  In 2008, in Heller v. the District of Columbia, the conservatives on the court voted and succeeded in saying that the Second Amendment protects an individual right to own guns.  Now the question is: how far does that extend?  New York has a law talking about carrying guns outside the home, and the court has to decide how far the Second Amendment protection extends on – and we should be hearing about that in the next few days. 

There’s another really big religion case coming out of the state of Maine that the court literally just decided and announced half an hour ago.  Maine has an – the state of Maine has an interesting state law that says if a community doesn’t provide local public schools, then there will be state money given to individual families to use to pay for private education of their children.  So if a city or a community doesn’t have a public school, the parents are given state money to use for tuition for private schools, but the Maine law said you – parents could not use it to pay for religious schools.   

Several parents challenged that.  They would like to use the state money for religious schools, and the court just announced that Maine must allow that.  They struck down the Maine law that prohibited parents from using the money for parochial schools, religious schools.  Six to three, the court has just decided that no, Maine must allow – or states, not just Maine but all states, if they have such a program – must allow parents to use the money if they wish for religious schools.  Otherwise, said the six in the majority of the court, that violates the parents’ religious rights.  It’s not really a surprise.  This decision is not really a surprise, but it’s certainly not the way the Warren Court would have decided it back in the ’70s – ’60s and ’70s. 

There are also a couple of interesting death penalty cases on the docket.  One involved the guy who did the Boston Marathon bombing, the Tsarnaev brothers.  One of the brothers died in their effort to escape the police, but the other brother, Dzhokhar Tsarnaev, was tried and found guilty and sentenced to death.  The Court of Appeals found some errors in the sentencing and reversed the death penalty.  The case went up to the Supreme Court.  The Supreme Court agreed with the federal government, said the errors – there were no significant errors, and they reinstated the death penalty for Dzhokhar Tsarnaev.  So he is back on death row. 

The other interesting death penalty case involves an inmate, Mr. Ramirez, who would like the state of Texas to allow his pastor, his religious minister, to hold his hand and to pray with him aloud while the death sentence is being administered.  Texas says that a minister can be with the death penalty inmate, the person who is about to be executed, but had – Texas had imposed rules that prevented the clergyman from praying out loud and prevented him from touching the inmate.  The inmate brought the case to the Supreme Court.  The Supreme Court has said that there must – the state must allow the religious person in there.  The court just now decided – well, decided in March that the Constitution does require that the state allow a death row prisoner to have his pastor in with him, allow the pastor to touch him, and allow the pastor to pray out loud with him.  Because Texas did not give Mr. Ramirez this opportunity, it was violating Mr. Ramirez’s religious liberty, and therefore the state of Texas must comply.  That vote was 8-1 with only Justice Thomas dissenting. 

I want to mention one more religious case and that’s a football coach who customarily prays at the end of every game.  He would pray on the 50-yard line and thank God for the game.  His name is Joseph Kennedy.  And he was fired because he would engage in this practice.  He would – at the end of every game, he would kneel at the 50-yard line and give a prayer of thanks at the end of every game.  He claims that being – his firing violated his First Amendment rights of free speech and freedom of religion.  The court heard the case back in March and seemed somewhat sympathetic to the coach, but it’s hard to predict what the court will do.  That is a case that we’re still waiting for.  The issue, of course, is the question of the coach’s First Amendment free speech rights versus the school’s concern that it might be establishing religion and hurting the students’ free religious rights.  So as with all religion cases, it’s complicated because there are religious rights on both sides, and we’ll have to wait to see what the court does. 

And no matter what happens, this is a really interesting docket this year full of interesting cases and potentially some real explosions as the abortion leakage suggests.   

Let me just end my prepared remarks with a short discussion about, quote, “packing the court.”  I’ll tell you what that means, for those of you who don’t – aren’t with this jargon.  The question is:  Is the court too conservative and should Congress pass a law adding more seats to the court?  If they added more seats to the court, then Biden would have the opportunity to nominate the justices to fill those seats.  The Senate would have to confirm, but it would give Biden the opportunity to add more – presumably somewhat more – liberal justices.   

Right now, the court is very conservative.  There are five very conservative justices, three more liberal justices, and the chief justice, who is conservative but not as conservative as the most conservative.  And as I mentioned earlier, he used to be the critical fifth vote, but with the addition of Amy Coney Barrett, the chief justice has less significance.  His vote has less significance, because the conservatives have the five votes that they need to make a majority in any decision. 

Before I talk about packing the court, let me just say that the Constitution does not specify how many judges are on the Supreme Court.  The Constitution requires that there be a Supreme Court and that the president nominate and the Senate confirm the judges on the court, but it does not specify how many.  And oddly enough, when the court was first created in 1789, there were – Congress provided that there be six judges, which I’ve always found very striking.  They obviously didn’t contemplate dissents, because otherwise I think they would have put an odd number, not an even number on the court.  

In any event, the number has fluctuated from that six.  By the time of the Civil War, it was nine and it has remained nine.  So nine is sort of the magic number, although as I say, there is nothing in the Constitution that specifies nine and nothing in the Constitution that says Congress can’t add more or take away.   

The last time the court – that Congress seriously considered adding more and, quote, “packing the court” was during Franklin Delano Roosevelt’s administration when Roosevelt was trying to get the Congress to pass laws to help us get out of the Depression, and Congress obliged, passed a number of different laws to try and deal with the Depression, and a very conservative Supreme Court struck them down frequently.  That led to a discussion about letting FDR – well, letting Congress create more seats and then letting FDR – President Roosevelt – nominate justices to those seats.  The proposal at the time was that they would add more seats, but as justices left the court by dying or retiring, the court would eventually get back to nine.  So it wasn’t a permanent enlargement of the court. 

But even that proposal the Congress decided not to do, in part because they thought it was probably too political, it might damage the reputation of the court, and in part because natural attrition meant that a number of the justices died or otherwise left the court, so ultimately in not too many years FDR got to appoint new, more liberal judges.   

In any event, the proposal today is back that Congress add more seats and Biden nominate and the Senate confirm and thereby give more liberal voices on the court.  I actually don’t – personally don’t think it’s a good idea, but that is what is being discussed.   

So I think with that I will – let me just make one more proposal, one more thing on the table.  And that is, while I don’t think we should add seats to the court, I do think the court might need some restructuring where we would add term limits, so there’d be a more regular – a more regular sequence of replacements. 

One of the oddities of the court is that a particular president might get no appointments to a court and another president might get multiple.  For example, in President Carter’s four-year term there were no vacancies, so he got to put nobody on the court; whereas, in justice – in President Trump’s four years, same four-year term, he got to put three justices on the court.  So that seems to me to be unfortunate – not that Trump got three, but that it’s so random how many.   

So I think we should – and there are lots of proposals out there to figure out a way where we could have more regularity, whereas perhaps in every four – within every four-year term there is at least one vacancy, and we can discuss how that could be set up.  I don’t think it – the controversy would be how to get it started, but once it was in place I think it would be a better system and would improve our court somewhat. 

So with that, I am happy to take questions.  And I guess, Jean, you’re going to take the questions and shoot them to me? 

MODERATOR:  I will, I will.  Thank you for those remarks, Professor Bloch.  That was a great explanation of a little bit of the history and the current state of the docket for this year of the court.  If you have a question, please go ahead and raise your virtual hand.  And while we’re giving folks time to do that, we do have some questions that came in earlier, so I will go to one of those.  Oh, no, we do have a question.  We’ll go the person who’s here attending first. 

With that, I’ll turn it over to Cristina Olea from TVE Spain.  Cristina, if you’d like to turn on your camera and unmute yourself, please go ahead and ask your question.  I’m sorry, we don’t hear you, even though you say you’re unmuted.  It says you’re muted now.  Please unmute yourself.  There you go.  We don’t hear you at the moment, so if you want to work on resolving that, I’ll go to one of our written questions and then we’ll come back to you. 

Okay, so we have a question that was submitted from David Smith of The Guardian.  David, are you here today, if you’d like to go ahead and ask your question?  Okay, I’ll go ahead and ask it on David’s behalf.  So David Smith from The Guardian in the UK wrote in and said:  “Has public trust in the Supreme Court declined, and why?  And can this be reversed?” 

MS BLOCH:  Personally, I would say that the Supreme Court has lost – the public has lost some confidence in the court.  I think – I mean, Chief Justice Roberts is very concerned with the reputation of the court and trying to keep politics out of the court.  Lately, I think the fact that Justice Thomas’ wife has been so overtly in the Trump camp has hurt the court.  I think that that – there has been that leak is going to hurt the court.  It’s – the court has over the 200-something years has maintained a really, I think, very admirable position, highly thought of.  I don’t want to say revered; that’s a little too much.  But – and Justice Roberts, Chief Justice Roberts is just enormously adamant about maintaining that, but I do believe that the court has looked more political.  And the more political the court looks, the less respect I think people have for it.  And I think it’s a real tragedy.   

MODERATOR:  Thank you.  Cristina Olea is typing in her question.  She’s having problems with her microphone.  But while she types this in, and I’ll ask – oh, they came in.  Okay, so I’ll ask on her behalf.  She said:  “Can you elaborate more on Roe v. Wade and the right to privacy?  Are other rights at risk, for example, same-sex marriage?” 

MS BLOCH:  Yeah, that’s a great question.  And I would say that if the court overturns Roe v. Wade, then it will say, as the leaked opinion says, that other rights are not in jeopardy.  But I agree with the premise of your question that all the rights that come from this, what we call substantive due process, which is in the 14th Amendment, which is where the Roe v. Wade abortion right lies, I think they’re all in jeopardy.   

It’s really important for the chief justice and for those of us who admire and – admire the court that it maintain its – the people’s respect.  And when it reverses precedent, it jeopardizes that.  So if the court does overturn Roe, it will put into jeopardy other rights that are similarly based on the 14th Amendment, and one of those is the right to same-sex marriage.  And so yes, while the court might say those rights are not in jeopardy, the draft opinion tries to say those rights will not be in jeopardy, but I think they will be.  It would just be a matter of time before the court begins – assuming the court’s membership stays the same, I believe those other rights will be in jeopardy too. 

MODERATOR:  She had a quick follow-up saying if an overturning of a case such like this, is there – is that an unusual thing to happen, turning over a landmark case such as Roe v. Wade. 

MS BLOCH:  Overturning a landmark – overturning any case is very unusual.  The court does not like to do it.  It makes it look very political.  The idea is if something was unconstitutional, as the laws against abortion, if they were unconstitutional in 1970 and nothing has changed, why does it suddenly become – the law – sorry.  The law restricting abortion was unconstitutional in the ‘70s, as the court decided in Roe v. Wade.  Then there’s no reason that that should change.  Slight things might change. 

One of the things I should point out about Roe v. Wade, when it was decided in the early 1970s, it was a seven-to-two decision.  It wasn’t one of those five-four close decisions.  And overturning it will make the – make the court look more political and will jeopardize other rights.  And that’s why everyone is paying such close attention and is so alarmed by this leaked opinion. 

And it’s worth pointing out and repeating that we’ve never had a leaked opinion before, and that must be driving Chief Justice Roberts totally crazy, because it really hurts – it hurts the court’s reputation; it hurts the internal workings of the court.  As my bio shows, I clerked for Thurgood Marshall, and the reverence with which these justices hold the court and its procedures is really striking, and the fact that somebody leaked this opinion – and we don’t know who, but it’s – I can’t tell you what a devastating thing that is.  And I – there are – the justices must be so alarmed by it, because it’s not just the leak of one opinion.  It’s just showing that the court is not as revered even by the people in the court, so it’s very troubling.   

Sorry, that was a long answer, but you hit a chord. 

MODERATOR:  (Laughter.)  Sorry.  Our next question will come from Daisuke Nakai from Asahi Shimbun.  Daisuke, if you want to turn on your camera and unmute yourself, please, go ahead and ask your question.  

QUESTION:  Hi, and thank you very much for doing this today.  You mentioned several times that the court may seem more political if it continues on its current direction.  I don’t think we’ve asked a question about that.  There are several people who say that, well, the court has always been a political actor to some degree.  The justices are nominated by the president, confirmed – and confirmed by Congress.  And there are several people with a political background who are sitting on the court. 

My question is:  So do you think the court is becoming more political or is it just political in a different direction than it was before?  Is that changing at all?  You mentioned earlier, for instance, FDR and the court at the time.  Isn’t that also a political argument?   

MS BLOCH:  Yes, you’re exactly right.  I mean, the fact that the justices – really, all our federal judges – are nominated by the president and then confirmed by the Senate, both of which are political bodies, means that the judges are coming – are being put on the court by political bodies.  So politics is inevitable, to some extent.   

But we’ve always had a tradition that once a judge is confirmed by the Senate and sworn in that they try, to the best of their ability, to be apolitical.  We’ve always been – one of the reasons we give judge’s life tenure is to allow them to be apolitical.  The thought of life tenure is, okay, now you’re there, your job is not in jeopardy no matter what you decide, so try and be as apolitical as you can. 

It’s not always possible, but it is the ultimate goal of our system.  And most judges take that pretty seriously, but not all.  And I think what we’re seeing right now – for example, the fact that Justice Thomas’s wife is maintaining a very high political profile with the Trump administration is unheard of.  When Chief Justice Roberts became chief justice, when he got put on the court, his wife, who happened to be a law student of mine at one point, and whose wife Jane is a lawyer, immediately left the legal practice she was in because she thought she shouldn’t even be practicing law, even though her legal practice was not a political one, and she went to a much lower-profile position. 

So to – I agree with the premise of your question, that politics is inevitable.  But there’s always been a very high priority on trying to figure out ways to reduce the level of politicization.  And that goal right now doesn’t seem to be a high priority for some members on the court.  Sorry, another long answer.  

MODERATOR:  Thank you.  

QUESTION:  Thank you. 

MODERATOR:  Our next question, we’ll turn it over to Julia from DPA, Germany.  Please, go ahead and ask your question. 

QUESTION:  Hi.  Thank you so much for doing this.  I have a rather technical question about Roe v. Wade.  So we are all waiting for this decision, and at least the way I understood it, the draft opinion basically said the decision about abortion is going to go back to the states.  So is there another outcome that would also strike down Roe v. Wade but that would be different, for example, making a decision about viability, just saying the Mississippi law, the way it is with this 15/16-weeks ban as constitutional?  Is there another way a decision could look like, other from what we have seen in the draft opinion?  Thanks. 

MS BLOCH:  Yes, thank you.  That’s a good question.  Yeah, what many of us think the chief justice wants to do is to say that the Mississippi law is constitutional; it’s okay to ban abortion after the number of weeks in the law.  I’m sorry.  That it – let me think this through.  Let me get this straight.  He wants to save Roe v. Wade but say that this law is unconstitutional but maintain Roe v. Wade.   

And that’s sort of what the – that – one of the things all of us are trying to figure out is who leaked the opinion and which side.  Did the liberals leak it or did the conservatives leak it?  And there are good arguments both ways.  The liberals might have leaked it – and by the way, when I say liberals, I don’t know if I’m talking about judges or law clerks or who – but someone who didn’t like the opinion might have leaked it to get the country all riled up and maybe to scare the court in some way to change its mind.  Or the conservatives might have leaked it to make sure that the five who are right now on the opinion don’t move and – because Roberts is – word is – word on the Supreme Court street is that Roberts would like this middle position, where Roe v. Wade does not get struck down, and he only has to convince one of the judges that are on the leaked opinion to go with him.  And if he can do that, then Roe will not get struck down; the law will be upheld, but Roe will not get struck down.   

And so that – under that theory, it would be a conservative who might leak the opinion and thereby make it more difficult for the five that are currently on the draft opinion to move over to the more moderate Roberts position.  I’m sorry if I lost some people.  I don’t think there’s an easy way to describe what I was trying to say.  But I welcome follow-up questions and/or – well, if I confused you, I apologize.  I don’t think there’s an easy way to say what I was trying to say, but I welcome suggestions.   

In any event, I don’t know who leaked it, and I can give good arguments for why it could have been a liberal side or a conservative side.  I also don’t know if it was a law clerk or it could have been a justice, which would be totally shocking.  It would be shocking if it was a law clerk.  The whole thing is shocking.  So I don’t know who did it.  I can only give you the arguments for why it could be either someone who likes the result or someone who doesn’t like the result.   

MODERATOR:  Thank you.  We’ll go to our next question, or questioner, from Alexis Buisson from La Croix, France.  Alexis, please, go ahead and ask your question.   

QUESTION:  Hi, thank you for doing this.  Can you hear me?  Perfect.  I had two questions, and the first one is kind of along the lines of the previous one.  I’m wondering, like, what are the chances that the final opinion is very different from the draft opinion that was leaked in February?  And the second question is I believe there’s still like 13 cases to be examined on the docket before the end of the term, and I’m wondering if — 

MS BLOCH:  I’m sorry, I didn’t hear that.  You believe what?   

QUESTION:   I’m – I believe there’s still like 13 cases to be examined by the justices before the end of the term.  I’m wondering what are the chances that the justices don’t get through all the cases before the end of this term.  Thank you.   

MS BLOCH:  Okay, let me answer the second one first because it’s easier.  They won’t end the term until they’ve decided all the cases.  So back in the day when I was clerking for Marshall, Justice Brennan was on the court and he always would go to Nantucket up in – off Massachusetts every summer.  And in order to get to Nantucket you have to take a ferry, and in order to take a ferry you have to have booked it, like, six, eight months earlier, and you can’t miss your ferry because you put your car on the ferry, and if you miss your ferry, your summer is just totally messed up.  So everything revolved around when Justice Brennan had his reservation on the ferry to go to Nantucket, and then that – if you knew that, then you would know the date by which the court would have finished its business.   

So the court will not end the term until every case is decided, or they – what they can do is say they can decide the case and move it to the next term.  But they clear their docket.  They might – what I meant by that was that they might reschedule the case for a re-argument, and then it goes on to the next term, so they cleared this docket.  So there’s no chance that the court will leave without deciding everything, including the possible decision of putting over a case, but they don’t usually do that.   

Although Roe v. Wade was the case that was argued twice.  They heard it.  They didn’t decide it the first term.  They put it over for re-argument.  It was re-argued and then they decided it.  I don’t think they’ll do that, but that is possible.   

And I think your first question, if I remember it, was how likely is it that the final opinion will be different than the draft opinion.  Let me just tell you how – I think in this case, especially because it got leaked, it’s not likely to change very much.  But in the normal – so I don’t know for sure on the Roe situation, but the way the normal course works – and I’m glad you asked the question because I think it’s important to understand this.  As I said – sorry – as I said in the beginning, the court hears arguments Monday, Tuesday, Wednesday.  Then on Wednesday afternoon they meet and they decide Monday’s cases, tentatively.  And then on Friday they meet and they decide Tuesday, Wednesday cases.  At the end of that week, whoever is in the majority of the – each case picks who’s going to write the opinion.   

So for example, they’ll go to the Mississippi case.  The way that would have worked is they would have heard the argument.  By the end of that week, they would have decided it, tentatively, probably the way they did, five to overturn Roe.  Chief Justice somewhere – not – yeah, not – probably wanting to throw the law out but keep Roe, and then the three liberals wanting to protect Roe.   

So on the basis of that, there were five votes to overturn Roe – and everything I’m now saying is based on how this court usually works, and I’m quite confident that that’s how this worked in this case.  On the basis of that, there were five votes to overturn Roe.  Roberts wasn’t in that five, so he didn’t pick who wrote the opinion.  The chief – the justice with most seniority would have chosen who wrote it.  That would be Thomas.  Thomas is the most senior of the conservative justices.  So he would have picked Alito.  And as I said, word is that Roberts was trying to find sort of a middle ground.   

So what are the odds that that draft opinion changes dramatically?  I’d say the odds are not – I mean, if I were betting, I wouldn’t bet on that side, in part because I think the leak just makes it less likely that people change their mind.  These people are pretty confident and don’t like to be pushed around.  So I don’t know if that helps, but just to finish how the situation usually goes, the dissent starts writing its opinion usually around the same time.  Then what happens is the majority who’s writing the opinion circulates it to the whole court.  The individual justices just will write memos back.  It’s almost all in writing, or at least it was back in the day.  So in this case, Alito would have circulated his opinion.  Different justices would have done a variety of things.  They would have said, “I’ll join you if you change the wording on page 3” or “I’ll just – I’ll join you” or “I can’t join you unless you change da-da-da.”  That is – goes around.   

Then somewhere in there, the dissent is writing also.  They circulate it.  People join the dissent.  Roberts probably is writing something in the middle to strike down the law but maintain Roe, and that would be circulated too.  And so all of that is happening, and then when – when everyone has signed on to one opinion, when everyone has voted, the chief says, “Okay, is the – is this decision ready to hand down?” and they all agree that it is and then it becomes public.  

But – and so in that process votes do change, and sometimes results change.  Occasionally someone in the majority – who had been in the majority might, after reading all the opinions that are – the draft opinions that are circulated, might well say, “I’m convinced by the dissent.  I’m joining the dissent.”  And sometimes that changes the result.   

We on the outside have no idea.  And we will never know, in general, assuming there’s no leak, what – how the sausage was made.  We don’t know that.  But sometimes crazy people like me see little hints.  Sometimes – for example, if you see a majority – if you see a dissenting opinion that has a really long, elaborate history of the case and the procedures and what – then that’s a clue, a hint that probably that was a majority opinion and that lost its majority and became the dissent.  Because if you look at dissents, you’ll note that they – their procedural history of the case is usually fairly short, because they rely on the majority to spell out what all happened.  But if a majority opinion starts out with all the history, and then it, quote, “loses its majority” and it becomes the dissent, typically the author doesn’t bother to chop out.  So that’s a clue.  

Sometimes another clue is just typos that they missed, a little wording here and there that somehow gives you a clue.  And crazy people like me love those clues.  So that could happen, but it’s very unlikely.   

Did that answer your question?  

QUESTION:  Absolutely.  Thank you.  Thank you. 

MODERATOR:  Thanks.  I think we have time for one more question, and that will go to – if we have time, perhaps, two more, but we’ll see – to Barbara from the Netherlands.  Barbara, please go ahead and ask your question. 

QUESTION:  Thank you so much for doing this.  You mentioned that the chief justice wants to probably save Roe v. Wade, and it makes me wonder how powerful they are.  And so can you elaborate a bit on the role of the chief justice, please? 

MS BLOCH:  Yeah, the chief justice, his role is important, but as one famous chief justice said, he was quite surprised to find that really it was a lot – he wasn’t quite as powerful as he thought. The chief justice has, quote, “most seniority,” no matter when he got on the court.  So anytime the chief justice is in the majority, or whichever side the chief justice is in, he is most senior, so he decides who writes the opinion.  So if he’s in the majority, he decides who writes it.  And most chief justices, if it’s a really big case, tend to keep that opinion for themselves.  So that’s a big deal.   

The other important role of a chief justice is just one of persuasion, and really he’s only really one of nine when it comes to trying to persuade his or her colleagues.  And a number of chief justices have lamented that they were a little disappointed that they weren’t more powerful than they are.  They always – in the conference, they give their view first, and that’s an important thing because they – when you’re giving your views, you’re trying to persuade your colleagues.  I remember when Justice Scalia got on the court, I knew him really well.  In fact, he came to my class every year until he died to talk, to teach my students.  But he lamented that when he got on the court, the way it goes in conference, they go around the table and they go in order of seniority.   

So the chief justice says in the case of Jack v. Jones, I believe Jack wins because of da-da-da.  He gives his view.  And then the next most senior, which in this case would be Thomas today, says I believe in Jack v. Jones, Jones is the guy, and goes all around the table.  So the least senior, the ninth justice, gives his view.  And Justice Scalia said when he got on the court, he was just devastated because by the time they got to him, it was decided.  And he felt like anything he would say about why he was going to vote whichever way, it was hard.   

So what power does the chief justice have?  His main power is talking first, trying to persuade the others.  He has the power when he’s in the majority to assign who writes the opinion, and that’s an important power.  But like in the Mississippi abortion case, he is not in the majority, so he did not – the person who assigned the opinion must have been Thomas, and he gave it to Alito.  I don’t think I know why.   

But, so I’m not sure.  Did I answer your question?  It’s an important position.  The chief justice is an important position, but not as important as one might think.   

QUESTION:  Thank you. 

MODERATOR:  And with that, I’m going to thank our briefer, Professor Bloch, for her time today to discuss this important and very timely topic.  And thank you to our journalists for their participation.  This briefing is now concluded. 

MS BLOCH:  Thank you, everybody.  Thank you for the chance. 

MODERATOR:  Thanks, again. 

QUESTION:  Is it possible to ask one more question, or is it all done now?  I’m sorry.  

MS BLOCH:  I’m okay.   

QUESTION:  Yeah?  Okay, maybe we try really fast.  I’m sorry.  It’s maybe a more general question.  Can you maybe give us some insights about decisions that were made in the last case until now that affect the – oh sorry, can you hear me? 

MS BLOCH:  I missed some of it. 

QUESTION:  Oh, sorry.  I just mean the power between the federal state and the states.  Do you see any shift in the last month, in the last decade, or in the near future?  Yeah, that what role does the Supreme Court plays in that balance of power?  Because that – I see a big shift towards more power to the states.   

MS BLOCH:  Yeah, that’s a great question, and you’re right.  And that’s an important point.  If the Supreme Court overturns Roe, the effect of that will be to let the states do what they want.  So a lot of states will keep abortion legal, but a lot of states, particularly probably southern states, are going to make it more difficult.   

So Mississippi, for example, will be able to keep its very restrictive law, and other states will similarly – might, I don’t know – draft very restrictive laws.  States like New York and New Jersey and California will maintain the right to get an abortion, and what it will mean is that people in the other – in the restrictive states will have to go elsewhere.  And that, again, will affect – it’ll adversely affect poor people, people who don’t have the means to fly to New York or drive to New York.  So — 

QUESTION:  Yeah, but what I meant was on the – for the abortion cases but also about other cases that this is kind of a precedent for other court ruling, and that’s a big trend now.  And what will we see in the future, like all the red states make their own kind of second kind of the United States of America with a totally different law situation?   

MR BLOCH:  Yeah.  Well, if I understand your question, I mean, we have to talk about it with respect to individual issues one by one.  I mean, if – I mean, for example, gay marriage now is – states have to allow it.  If the court were to overturn that, the Obergefell decision, then states could do what they want.  So you’re right.  The trend – if the Supreme Court overturns some of these landmark decisions and leaves it to the states, then different states will do different things.  And you’re right, that does seem to be the direction.  So I guess —  

QUESTION:  Thank you.