ORLANDO, Fla. (BP) — An attorney who has appeared in front of the Supreme Court justices says Christians should not stop praying for the two marriage-related cases simply because oral arguments are over.
If anything, he says, they should intensify and multiply their prayers.
That’s because the justices, even though they already have taken secret votes on the two cases, still could change their minds in the weeks leading up to a likely June ruling.
“[Christians] definitely need to be praying for the cases,” Mathew Staver, chairman of Liberty Counsel, told Baptist Press. “[The votes] can change up until a day or so before the opinion is released.”
At issue are Proposition 8 and a section of the Defense of Marriage Act. If both are overturned, then gay marriage could be legalized in all 50 states.
[QUOTE@left@180=Supreme Court decisions could change “a day or so before the opinion is released.” –Mathew Staver, Liberty Counsel]After the nine justices hear oral arguments in any case, they gather together in a conference room and give their thoughts and reveal their votes on the case, beginning with the chief justice and ending with the least senior justice. The authors of the opinions then are determined, with the most senior member of the majority and the most senior member of the minority assigning the opinion to the respective writer.
Justices have changed their minds, post-oral arguments, in high-profile cases previously. The internal deliberations usually are known only years later, thanks to books or papers released by retired justices.
In a 1989 abortion case, Webster v. Reproductive Health Services, then-Chief Justice William Rehnquist believed he had a majority to severely weaken Roe v. Wade, the 1973 decision that legalized abortion nationwide. But in the final 10 days of the term, then-Justice Sandra Day O’Connor refused to support Rehnquist’s proposed majority opinion, depriving him of the critical fifth vote and forcing him to change the language on Roe in what became a ruling that merely upheld some restrictions on abortion. Days earlier, former Justice Harry Blackmun, a supporter of abortion rights, thought that Roe was in trouble and had written “Roe no longer survives” in his draft dissent — language he removed. The 1989 internal deliberations became public with the release of the papers of the late Justice Thurgood Marshall.
In another 1992 abortion case, Planned Parenthood v. Casey, Rehnquist again believed he had the five votes needed to attack Roe and had written a draft opinion before Justice Anthony Kennedy — who remains on the court today — switched his vote, again depriving Rehnquist of the five necessary votes. What would have been a 5-4 opinion potentially overturning Roe became a 5-4 decision that upheld it. The 1992 deliberations were made public with the release of Blackmun’s papers.
It appears that the 2012 landmark decision related to the health care law also was impacted by a vote switch. In that case, Chief Justice John Roberts was set to vote with a 5-4 majority to strike down the law when he switched and instead voted with a 5-4 majority to uphold it, according to CBS News’ Jan Crawford. Ironically, it was Kennedy — the swing vote in so many cases — who tried to persuade Roberts to stick with the original bloc that would have overturned the law, Crawford said.
“The person who is writing the majority has to circulate the draft opinion around to the other people in the majority,” Staver said. “And that’s where you can have some modifications, where one of those justices wants something else said or said in a different way, so they make adjustments to keep the majority together. It’s during that phrase that one or more of the justices could change his or her opinion.”
Despite leaks happening in seemingly every area of government, it doesn’t happen at the Supreme Court. That means that even the president himself doesn’t learn what the court ruled until every other American does — when the justices release their opinions. Rulings on the gay marriage cases are expected in June.
“It is amazing,” Staver said of the secrecy. “I’m not aware of any leaks that have ever happened, and that’s quite an accomplishment.”
Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).