Academic highlight: Assessing the Chief Justice’s self-assignment of majority opinions
on Feb 7, 2014 at 11:21 am
One of the Supreme Court’s (many) unwritten rules is that the Chief Justice selects the author of any opinion in which he is in the majority. In a recent article in Judicature, Linda Greenhouse analyzes the use of this prerogative by Chief Justice John Roberts and finds that, like many Chief Justices before him, he assigns himself the opinion more often in high-salience cases, and in particular those in which the Court is closely divided.
After reviewing the Court’s docket, Greenhouse lists 101 decisions during the Chief Justice’s tenure that she deems salient. Out of those 101 decisions, Roberts was in the majority 85 times, and he authored 25 of those 85 opinions — that is, 29%, or three times more than he would have written had the opinions been evenly assigned among the Justices. The Chief Justice’s practice is in line with most Chief Justices before him, who all authored a similarly large percentage of the important cases in which they were in the majority.
(As Greenhouse recognizes, salience is necessarily a subjective determination. Greenhouse spent thirty years covering the Supreme Court for The New York Times, and so she has a well-informed view on that question. Wisely, she lists the 101 decisions in an appendix to the article so that readers can decide for themselves if they agree with her assessment.)
There are many reasons a Chief Justice might want to author the Court’s most important and contested decisions. Greenhouse observes that “[o]ne reason for writing any majority opinion is to retain the maximum possible control over how an issue is framed” — control that is particularly valuable in an important and closely divided case. Of course, any Justice authoring an opinion in a close case is constrained by the need to maintain a fragile coalition. Nonetheless, the author sets the tone in an initial draft to which the others respond, and thus the Chief Justice can use self-assignment to augment his influence on decisions, thereby changing the course of the law.
Furthermore, “a majority opinion by the chief justice serves a signaling function: evidence that a question gripping the country has received the Supreme Court’s full attention and that the Court’s answer bears the imprimatur of the highest judicial officer in the land.” For that reason, she agrees with other scholars that the Associate Justices expect the Chief Justice to keep more important decisions for himself, “’so as to lend the prestige of his office to the Court’s pronouncements.’” As a related matter, Greenhouse notes that during his eight years on the bench, Roberts was in the majority more times than any Justice other than Kennedy—a voting record that might be due in part to his desire to obtain authorial control.