What is a major difference between majority opinion and dissenting opinion issued by the Supreme Court?

TV camera crews station in front of the Supreme Court building on Tuesday in Washington, D.C.

The Supreme Court has confirmed the authenticity of the draft opinion Politico published Monday night and is pursuing an investigation into the leak. But the court is stressing that the opinion, which calls for overturning Roe v. Wade, does not yet equal the law of the land.

"Justices circulate draft opinions internally as a routine and essential part of the Court's confidential deliberative work," it said in a Tuesday press release. "Although the document described in yesterday's reports is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case."

The court's internal deliberations may be confidential, but the process of getting to a final ruling isn't entirely a secret. Here's what we know about how the nation's highest court gets from consideration to conclusion.

First come the arguments, then the private conferences

After oral arguments end, justices typically discuss the cases with their law clerks to seek out different perspectives and form an idea of how they will vote, according to the U.S. Courts website.

Then the justices hold what is known as a private conference (there are two scheduled per week, on Wednesday and Friday afternoons) to actually decide the case. They typically start by discussing which potential new cases to accept or reject, and then turn to the cases they've heard since their last such meeting.

"According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have," the U.S. Courts site says. "Each Justice speaks without interruptions from the others."

The justices speak in descending order of seniority, starting with Chief Justice John Roberts. Then, in that same order, they each cast an initial vote.

Justices' votes determine who will write the opinions

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 a minority of justices believe that the case should have reached a different outcome, the seniormost justice in that group assigns someone to write a dissenting opinion. Any justice can also write a separate dissent of their own.

And if a justice agrees with the decision but disagrees with the reasoning behind it, they may write a concurring opinion, which others have the option to join.

How a draft opinion becomes a final ruling

This is where the draft opinions come in, as the law website SCOTUSblog explains. The assigned justices draft and circulate opinions outlining their decision and their reasoning.

"The time it takes to finalize an opinion depends on several factors, including how divided the Justices are, which justice is writing the opinion, and the court's schedule," it says.

There's always a chance that the draft opinion doesn't end up looking similar to the final opinion, NPR legal affairs correspondent Nina Totenberg told Morning Edition, noting that this has happened numerous times.

A majority of justices must "sign onto" the court's opinion before it can be delivered publicly, according to the U.S. Courts website.

"No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public)," it says.

All cases are typically decided by the time the court goes on summer recess in late June or early July. Other than that, there aren't any rules around when exactly decisions must be released — but those that are unanimous tend to come out sooner than those that are more divisive.

There are unanswered questions about this case

So how exactly is this process playing out for the case in question? Politico's reporting offers potential clues as well as puzzles, according to Totenberg.

Politico is reporting — citing an unnamed source "familiar with the court's deliberations" — that four of the other conservative justices voted along with Justice Samuel Alito in the conference they held after hearing oral arguments in December.

Roberts' vote is unclear, according to Politico, which said it's also not known whether he will join an already-written opinion or craft his own.

Totenberg says that during oral arguments, Roberts seemed to suggest that he wanted to move slowly, upholding the Mississippi law (which bans abortions after 15 weeks) at the heart of the case and leaving the basic framework of Roe otherwise intact. She adds that the idea "got no takers" at the time.

"The question in my mind is whether he even assigned this opinion," she adds, explaining that it's possible that he endorsed the leaked draft opinion or that he disagreed. In that case, she says, the most senior member of the majority would decide who would write the opinion — and that would be Justice Clarence Thomas.

"And I can't think of any reason why Thomas wouldn't give himself this opinion," Totenberg says. "There are still some mysteries to this, but I would be shocked if this were not an early draft of the opinion that will eventually come out."

This story originally appeared in the Morning Edition live blog.

Courts of appeal and the Supreme Court of Canada have multiple judges deciding together on the same case. Sometimes there can be more than one decision included in the case. When all the judges on a court agree, only one decision is delivered. If there is disagreement by the judges on what the outcome of the case should be, there will be two or more decisions: a majority decision, and dissenting and/or concurring decisions.

Majority Decisions

Majority decisions are the ones where a majority of the judges agree. For example, there are nine judges on the Supreme Court of Canada. What the majority of the judges on the Court decide on, becomes the majority decision. For example, if five judges agree on a matter, their decisions become the majority decision. This occurred in the Amselem decision. In that case, five judges reached the same conclusion. The majority decision delivered represented the decisions of Justices Iaccobucci, McLachlin, Major, Arbour, and Fish.[1]

If all nine judges agree and reach the same conclusion, then a unanimous decision is delivered. An example of a case where there was a unanimous decision is the Bedford case, in which all nine judges agreed that the challenged prostitution laws were unconstitutional.[2]

Dissenting Decisions

Sometimes there are judges who do not agree with the majority of the Court. Judges who reach a different conclusion can deliver a dissenting opinion. For example, if eight judges agree on a matter, the single judge who disagrees would write their dissenting decision. An example of this occurs in the 2020 case of Toronto-Dominion Bank v Young. In this case Chief Justice Wagner wrote the majority decision for the Court, which represented the decisions of himself, and Justices Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin, and Kasirer. However, Justice Côté disagreed with the majority and wrote her own dissenting decision.[3]

Concurring Decisions

In addition to the majority and dissenting decisions, there is a third type of decision a court can deliver called a concurring decision. These decisions result when a judge agrees with the ultimate conclusion made by the majority of the court but disagrees on how they reached that decision.

For example, in the 1990 Prostitution Reference case, Justice Lamer agreed with the majority’s conclusion, but disagreed on certain legal points. This resulted in Chief Justice Dickson writing the majority decision for the court, which represented the decisions of himself, and Justices La Forest and Sopinka. Justice Wilson disagreed with the majority and wrote a dissenting decision which also represented that of Justice L'Heureux‑Dubé. Justice Lamer (as he then was[4]) wrote a concurring decision.[5]

Precedent

Majority decisions become “precedent”. A precedent is set by a decision from a higher court which a lower court judge must follow when facing a case with similar facts.[6] In other words, it is binding. For example, a trial court in Alberta is bound by the decisions of the Alberta Court of Appeal, which is a higher level of court, as well as the decisions of the Supreme Court of Canada. Even though the Supreme Court of Canada is not bound by its previous decisions, the Court will often follow those previous decisions to allow for consistency and certainty in legal interpretation.

Concurring or dissenting decisions are not binding; however, they can act as “persuasive” authority that can guide future decisions. For example, in the 1993 Rodriguez[7] decision, Justice McLachlin (as she then was) wrote a dissenting opinion, which later influenced the majority decision in the 2015 Carter[8] decision dealing with medical assistance in dying. With some exceptions,[9] only the Supreme Court has the ability to change how courts are to interpret the law. However, there must be good reason for the Court to overrule a previous decision, such as a change in social realities or a different legal principle being raised.

Sometimes there can be multiple sets of concurring decisions. More concurring decisions can make it more difficult to understand the main point of a case. For example, in the 2018 Mikisew Cree[10] decision, the Supreme Court delivered a majority decision, and three sets of concurring decisions. While the overall conclusion remains the same across all four decisions, the fact that the judges were so divided on points of law provides less clarity or guidance for lawyers or lower courts who have to apply that law. An outcome like this can be contrasted with the decision delivered in Bedford in which all nine judges agreed.[11] A decision where all judges agree offers greater guidance and

[1] Syndicat Northcrest v Amselem, 2004 SCC 47.

[2] Canada (Attorney General) v Bedford, 2013 SCC 72 .

[3] Toronto-Dominion Bank v Young, 2020 SCC 15.

[4] This phrase indicates that Justice Lamer was not Chief Justice of the Supreme Court of Canada at this point in time. This phrase is used for judges that became Chief Justice later in their career, but still served on the Supreme Court before they became Chief Justice. This phrase is used later in this article in reference to Chief Justice McLachlin.

[5] Reference re ss. 193 and 195.1(1)(C) of the Criminal Code (Man.), [1990] 1 SCR 1123, [1990] 4 WWR 481 .

[6] Halsbury’s Laws of Canada, Civil Procedure (2017 reissue) at para 27.

[7] Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519, 107 DLR (4th) 342.

[8] Carter v Canada (Attorney General), 2015 SCC 5.

[9] “… [A] trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”; Bedford, supra note 2 at para 42.

[10] Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40.

[11] Bedford, supra note 2.