May 26, 2022
The U.S. Supreme Court still has 35 opinions to issue this term, which should last about one more month. The opinions are usually announced on Monday morning, but as the end of the term nears, the court could schedule additional days for releasing opinions.
Though these opinions are an important source of law, it is probably safe to assume that most citizens have not read one (the same is likely true of statutes passed by Congress or administrative rules). As a result, most people are almost entirely dependent on media explanations of the court’s work.
Although the Supreme Court’s opinions generally don’t make for easy reading, that is not necessarily because the opinions themselves are particularly opaque. In fact, the justices often include narratives of fact situations, careful arguments, and conclusions meant to persuade, all of which can make for interesting reading, and none of which are typically included in other sources of law like statutes and regulations. The challenge usually is that the reasoning contained in the opinions includes a lot of unspoken context derived from other sources of law, and particularly from prior court decisions.
With that caveat, an understanding of a few basic features of a Supreme Court opinion can make it more understandable.
An opinion begins with a detailed summary of the court’s decision, preceded by a disclaimer that the summary of the opinion does not constitute the actual opinion. The summary is called the “syllabus.” It is created by the court’s reporter, the official who prepares and publishes the official decisions. A particularly helpful part of the syllabus is the breakdown of the justices’ positions at the end.
After the syllabus, which is often a couple pages long, the official opinion begins. After the title, the first line identifies the justice who authored the opinion and the status of the opinion. So, in the example linked above, the first line is, “CHIEF JUSTICE ROBERTS delivered the opinion of the Court.” This tells us that Chief Justice John Roberts wrote the opinion and that it reflects the majority opinion.
The opinion is carefully organized with sections marked with Roman numerals and subsections. This is important because sometimes other justices will agree with some sections or subsections of an opinion but not others.
Though there is not a set format, the opinion will usually begin by describing the facts of a case, the legal provisions involved, and the lower court decisions. This would usually be followed by the detailed legal reasoning. This portion is critical because the court’s reasoning will be followed in future cases and in lower court decisions on the same issue.
The opinion will conclude with the court’s “judgement” which very briefly states the “bottom line” resolution of the case. This could be a note that a lower court’s order in the case is affirmed or reversed and/or that a lower court should reconsider the case based on the reasoning in the Supreme Court opinion.
In some cases, additional opinions from other justices will follow. An opinion from a justice who agrees with the majority’s opinion (reasoning) or judgement (conclusion) is called a concurrence. These opinions can add additional arguments that the rest of the majority did not want to address. It could also reflect that a justice agreed with the result (like affirming the lower court’s order) but for entirely different reasons than those relied on by the majority. These opinions can become important in future cases where the justices may decide to adopt reasoning from a concurring opinion because that reasoning is so compelling even if it did not win over the majority at the time. If other justices join the concurrence, the lead line of that opinion, will say something like, “JUSTICE ALITO, with whom JUSTICE SOTOMAYOR joins, concurring.”
The justices who did not join the majority opinion can include a dissenting opinion. This example has a dissent from three justices that begins, “JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting.” Dissenting opinions are primarily written for future decisions. The hope of the authors is that the reasoning will be adopted by a majority of the justices in a future case.
There are some wrinkles in this basic description.
Sometimes, a specific author will not be identified because the opinion reflects the combined work product of all of the justices who joined the opinion and will thus be identified as a “per curiam” (Latin for “by the court”) opinion.
Sometimes, the first opinion does not reflect a majority. For instance, in Casey v. Planned Parenthood, the opening line is, “JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which JUSTICE STEVENS joins, and an opinion with respect to Parts IV; V-B, and V-D.”
This complex sentence means that three of the justices wrote the opening opinion. These three justices co-wrote the opinion, but their entire opinion does not reflect the reasoning of a majority on all of the issues addressed. The judgement (conclusion) these justices reached, that parts of the Pennsylvania law being challenged are constitutional and others are not, is agreed to by the majority. Only the reasoning of the specific subsections listed, however, gained majority support. (This particular case is complicated because a couple of sections reflected support by one coalition of justices making up a majority, another couple of sections were supported by a different set of justices making up a majority, and one subsection which received the support of four justices.)
The lead opinion in Casey is called a “plurality opinion” because it is the opinion with the largest number of justices agreeing to its reasoning while still being supported by less than a majority. The plurality opinion also must reflect the bottom-line conclusion of a majority of justices.
These kinds of complicated opinions, though, are not the rule. Although it may take some doing, understanding court opinions does not have to be impossible. The risk of not doing so is that third parties will become the sole source of information on what the court does.
There have been recent news stories about low approval ratings of the Supreme Court, but if these opinions are formed based only on the characterization of the court by others, how reasoned can they really be? Increasing the understanding of the court’s work can actually be an important step toward promoting a constructive conversation about civic issues.
while some individuals and groups have sought to stoke public fear regarding election integrity, the facts say that voting in Utah is safe and secure from significant or widescale fraud.
The First Amendment – like the Constitution itself – would not exist except for the legislative negotiation and compromise that made it happen.
Today Sutherland Institute announced the return of its Congressional Series for 2022. Later this summer, each of Utah’s members of Congress will take the opportunity to speak on a critical policy issue and engage in Q&A.