The Internal Dynamics of the Court

The result in Fisher was surprising, but the case illustrates an important point about how appellate courts work.  In Fisher I, the scuttlebutt is that a majority opinion was drafted (possibly by Justice Kennedy) to strike down the UT admissions plan and place new obstacles in the way of racial preferences in higher education. Justice Sotomayor then circulated a draft dissent that was, by all accounts, very fierce (some of which made its way into her subsequent dissent in the University of Michigan case).  This dissent caused the majority to back down and the compromise remand to the Fifth Circuit.  In the interim, something caused Justice Kennedy to change his mind (though we won’t know what for a long time.)

The point is that dissents are not just expressions of discontent or appeals to the future.  Sometimes they actually change the outcome of a case. This is why knowing who the influential Justices are is impossible until long after decisions are made, because we usually don’t know how those internal conversations go.

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1 Response

  1. Joe says:

    The importance of one person in a multimember court was an issue covered in a recent recusal case USSC decided.