The Colorado Supreme Court opinions lay down the final word on cases, providing guidance and clarity on complicated instances across a spectrum of law. Their opinions may become the final say — but how do the opinions come into being? That’s just what the Colorado Judicial Institute’s Straight Talk with Justices covered on Sept. 17 with one of their sessions, “What You Always Wanted to Know about the Supreme Court.”
“The whole point of this session today is to just tell you a little about what goes on behind the curtain and talk about our processes you might not be aware of, or that aren’t necessarily visible to the outside world,” Justice Monica Márquez said.
Justice Carlos Samour said oral arguments are typically held twice a month, whenever the court is in session. The arguments are usually scheduled for the second week of the month, on a Tuesday and following Wednesday. Four arguments are scheduled each day, two in the morning and two in the afternoon.
When scheduling oral arguments, a staff attorney goes through all the cases at issue and sends a memo with proposals of arguments to Samour and Justice Melissa Hart, who are in charge of scheduling. The memo recommends the schedule and length of time for arguments, making suggestions such as scheduling two cases for argument back to back because they have related issues.
Next, the two justices decide how long to schedule oral arguments, which can be challenging. He added often the length of time for argument are selected by the number of issues, the complexity of the issues and case, and how complicated the facts and procedural history seem to be.
When preparing for scheduling the court uses preargument memos, or PAM, prepared by the law clerk who prepared the initial petition for cert, Samour said. The preargument memo summarizes what the case is about, and the law clerk collects any relevant cases, statutes and portions from the record.
Next, a staff attorney will polish the memo and put together the items, and circulate it between the justices, he said. The justices all review the PAM in preparation for the oral argument. The PAM does not make a recommendation one way or another, only summarizing the case, what has happened, what the arguments are and the issues that the court granted cert on.
Then, the justices move to independent preparation, he said. Each justice prepares separately and reads all the briefs and perform their own research. They may look at the record when appropriate, and in some instances, law clerks may help research, aid and brainstorm.
In this way, the justices come prepared — not only for oral argument — but also for the post argument conference and voting, Samour said. The two cases in the morning are discussed and voted around noon, and the two cases in the afternoon are voted and discussed at the end of the day.
Occasionally, the court will pass on cases when they come across something complicated or someone comes up with a question, or the court seems to be in disagreement, for a couple of days or week, he said.
Márquez explained that the Chief Justice of the court assigns majority opinions. At the end of the week of oral arguments, and each justice will pin down on their position on a case.
“I think the thing to keep in mind is that when you’re assigned an opinion, you’re not writing for yourself — you’re not writing what you think — you’re writing for the court,” Márquez said, and sometimes that can be a challenge to get four justices to consent on what the opinion ought to say.
At that point, the Chief Justice assigns that batch of cases to an individual justice “who happens to be in the majority,” Márquez said.
Unlike the U.S. Supreme Court, the chief Justice doesn’t assign dissents, she said. Those in dissent join together and discuss who will lead the dissent. Typically, if a more senior justice in a dissenting group wishes to take the lead, they have the prerogative.
Majority draft opinions are circulated by a deadline of Thursday at the close of business before the next Thursday’s conference, Márquez added. Then on Fridays, the justices review the draft’s opinions and write initial feedback to the authoring justice. Law clerks also assist by looking at the draft.
The following Tuesday, by noon, there is a preliminary vote deadline where each justice, via email, must state whether they will concur, dissent, write a separate opinion, are not ready to join the majority opinion, or request a more time on their opinion, she added.
There can be multiple drafts of opinions, and Márquez has experienced times when initial votes changed — where a concurring or dissenting opinion actually changed the thinking of the justices — “and in some cases the majority can actually flip.”
In such cases, a protocol of the court allows the authoring justice of the original opinion to either continue to write for the court, “so in other words they can actually change their opinion, change their vote and rewrite the opinion,” Márquez said. Or, alternatively, the authoring justice can stake their position, and turn what had been a majority opinion into a dissenting opinion.
Samour explained that weekly conferences are held each week at 9 a.m. on Thursdays. An agenda is circulated before the meeting telling the justices which cases will be discussed, the opinions set for final vote and any petitions for rehearing, among other items. If a vote on an opinion or memo is wanted by a justice, they must meet deadlines usually set for the week before the conference.
The justices have assigned seating at the conference. The chief justice sits at the head of the table, with the next most senior justice to his right, following that pattern all the way around the table to the most junior justice on the chief’s left, he said. However, no one sits in front of the chief, and the chair is left open for when occasionally a guest may be at conference.
The conferences usually last between two to three hours, and follow “a rule of juniority,” where the most junior justice speaks first before the vote and the process works rising the ranks until the last person to speak is the chief, Samour said. The idea is that the newest person should not vote and speak after their more experienced counterparts have already spoken and voted and possibly be swayed by those other justices.
“There are protocols in place because this is a seven-member court, and if you don’t have protocols, and agreements in place, it just doesn’t work,” he said.
Further, before COVID-19, the justices had a rule that after conference they all went to lunch together. Samour feels this rule helps to breed congeniality, after debating important issues which can cause some different opinions.