When a majority opinion has been written, it is shared with the dissenting justices, who then write the dissenting opinion (basically a rebuttal to the majority opinion).

According to an article about the New York State Rifle & Pistol Assn., Inc. v. Bruen Second Amendment case, Justice Alito wrote his own opinion which was a rebuttal to the dissenting opinion:

In his concurrence in the gun case he took on the liberal dissent penned by Justice Stephen Breyer and joined by Sotomayor and Justice Elena Kagan. "Much of the dissent seems designed to obscure the specific question that the Court has decided," Alito complained. [...] Alito wrote that "it is hard to see what legitimate purpose can possibly be served by most of the dissent's lengthy introductory section." [...] He said the "real thrust of the dissent" was that "guns are bad."

Then Justice Breyer modified the dissenting opinion to rebut Alito's opinion:

Breyer -- in writing what may be one of his last big dissents before retirement -- struck back. "I am not simply saying that 'guns are bad,'" he said. But he said that balancing "lawful uses" against the "dangers of firearms" is primarily the responsibility of elected bodies such as legislatures. "Justice Alito asks why I have begun my opinion by reviewing some of the dangers and challenges posed by gun violence," he said. Breyer said he did so because the "question of firearm regulation presents a complex problem -- one that should be solved by legislatures and not courts."

Was Alito allowed to modify his opinion to rebut Breyer's modifications? At what point do the rebuttals stop?

  • 2
    As many iterations as the justices individually and collectively see fit. There is no enforceable law, and there is no public policy, just the weight of tradition.
    – user6726
    Commented Jun 27, 2022 at 14:35

1 Answer 1


There is no limit, as the content of opinions can change up until they are published. The Justices read every draft of every other justice and will modify their arguments upon each draft to address their dissent or concurance (the former is they disagree with the draft entirely, while the later is "They are right, but for the wrong reasons" or "They are right, but neglected to include this opinion").

As a rule, the Chief Justice is charged with writing the opinion for the side he is in support of and the Senior most Associate Justice on the opposing side is charged with writing the opinion for their side. Both duties can be delegated by the appropriate justice as they please (either they are busy or maybe think another member is a better writer of the opinions) and occasionally the ability to write the draft opinion may make justices vote differently. Votes can also shift at any point prior to publishing the opinion, though there has to be some finalization of the votes prior to end of term (Last full week of June) as the opinions of a term must be published before the term's end.

  • 2
    "the Chief Justice is charged with writing the opinion for the side he is in support of and the Senior most Associate Justice on the opposing side is charged with writing the opinion for their side." This is quite incorrect. The most senior Justice in the tentative majority assigns some justice to write for the majority. Often if a Justice is considered an expert on some area of th law, that justice will be assigned opinions in that field when in the majority. Who to assign can be a matter of delicate internal politics. And the assigned opnion is not always the final majority one. Commented Jun 27, 2022 at 14:53
  • Also if the vote of one justice is considered "shaky" it is not uncommon to assign the opinion to that justice, as in having to write up the reasons supporting a decision that Justice may be inclined to stick with his or her own opinion. Also there is some attempt to balance the number and importance of opinions assigned to each Justice in a given term. Commented Jun 27, 2022 at 14:57
  • It's also not uncommon for Justices to vote soley so they can assign the opinion to themselves and thus weaken the case law's strength instead of letting the majority opinion be overly favorable.
    – hszmv
    Commented Jun 27, 2022 at 15:02
  • Yes, Chief Justice Burger was thought by his fellow-justices particularly prone to that. The Brethern noted one case in which Burger voted 5 time, twice each way, and one abstain or "pass". But doing that can backfire. If an opinion is not satisfactory to the other Justices, they may join what had been a concurrence or even a dissent, switching the outcome. Commented Jun 27, 2022 at 15:07
  • I can see it getting a bit messy if Justice A quotes text written in Justice B's opinion, and then Justice B changes the text in response. Commented Jun 27, 2022 at 15:21

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .