HEARING CASES BEFORE THE SUPREME COURT| 377important cases, extra time may be granted. Usually there is only one lawyer for
each side who presents the case, but parties that have fi led amicus briefs may par-
ticipate if their arguments “would provide assistance to the Court not otherwise
available.” Given the tight time pressures, the Court generally does not extend the
allotted time to allow “friends of the court” to testify; their participation is usually
limited to written briefs rather than oral arguments.
Some lawyers may not use all of their time because their train of thought is
interrupted by aggressive questioning. Transcripts reveal that justices jump in
with questions almost immediately, and some attorneys never regain their foot-
ing. The frequency and pointedness of the questions vary by justice, with Justices
Scalia, Breyer, Kagan, and Sotomajor being the most aggressive on the current
Court, while Justice Thomas has gone more than six years without asking a single
question.^35 Cameras are not allowed in the courtroom, so most Americans have
never seen the Court in action—though a small live audience is admitted every
morning the Court is in session. If you are curious about oral arguments, audio
recordings of every case since 1995 are available at http://www.oyez.org.CONFERENCE
After oral arguments, the justices meet in conference to discuss and then vote on the
cases. As with the initial conferences, these meetings are conducted in secret. We
know, based on notes in the personal papers of retired justices, that the conferences
are orderly and structured but can become quite heated. The justices take turns dis-
cussing the cases and outlining the reasons for their positions. This is the kind of
internal debate that the justices have argued should remain confi dential. They have
expressed concern that premature disclosure of their private debates and doubts
may undermine the Court’s credibility and inhibit their exchange of ideas.Opinion Writing
After the justices indicate how they are likely to vote on a case, if the chief justice is in
the majority (which is most of the time), he decides who will write the majority opinion.
Otherwise, the most senior justice in the majority assigns the opinion. Many consider-
ations determine how a case will be assigned. First, the chief justice will try to ensure
the smooth operation of the Court, including considerations such as which justices
may be able to take on the work of writing a given opinion. A second factor is the jus-
tices’ individual areas of expertise. For example, Justice O’Connor developed exper-
tise in racial redistricting cases and authored most of those decisions in the 1990s.
The fi nal set of factors is more strategic: it includes the Court’s external rela-
tions, internal relations, and the personal policy goals of the opinion assigner. The
Court must be sensitive to how others might respond to its decisions because it
must rely on the other branches of government to enforce its decisions. One famous
example of this consideration in an opinion assignment came in a case from the
1940s that struck down a practice that had prevented African Americans from
voting in Democratic primaries.^36 Originally, the opinion was assigned to Jus-
tice Felix Frankfurter, but Justice Robert Jackson wrote a memo suggesting that
it might be unwise to have a liberal, politically independent Jew from the North-
east write an opinion that was sure to be controversial in the South. Chief Justice
Harlan Fiske Stone agreed and reassigned the opinion to Justice Stanley Reed,