CALLING BALLS AND STRIKES? CHIEF JUSTICE ROBERTS IN OCTOBER TERM 2019.

• Author: Dalton, Meghan
• Position: John G. Roberts, Jr.

INTRODUCTION

At the confirmation hearing following his nomination to serve as Chief Justice of the Supreme Court of the United States, then-Judge John G. Roberts, Jr. made an analogy that members of the Judiciary Committee referred to with vigor over the course of the confirmation process (1) and that commentators have often returned to when discussing the Roberts Court in the fifteen years since. (2) During his opening statement, Roberts compared the role of a judge to that of an umpire: "I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it's my job to call balls and strikes, and not to pitch or bat." (3) The Committee took kindly to this metaphor, as well as Roberts's amiable demeanor and extensive experience as an advocate before the Supreme Court, and he was confirmed in the Senate by a vote of seventy-eight to twenty-two. (4)

As Chief Justice, Roberts has publicly demonstrated a commitment to this characterization of the Court as a passive institution and of the judge's role as "to suppress his or her ideological agenda in the interest of achieving consensus and stability." (5) This representation, however, does not leave Roberts powerless to influence the direction of the law while working within the confines of the rules of the Court. While the Chief Justice is often referred to as the "first among equals," a nod to the fact that each Justice's vote counts equally in determining the resolution of the cases that come before the Court, there is "[r]arely... equality in practice." (6) By virtue of his position as Chief Justice, Roberts enjoys various procedural responsibilities that allow him to shape the law in ways that his colleagues cannot. (7) One such responsibility is the assignment power, by which the Chief Justice is tasked with assigning the majority opinion. (8) The assignment power is "unique among the Chiefs duties in its ability to shape the development of the law," and is only available when the Chief falls in the majority at the conference following oral arguments. (9) This power, when coupled with a high rate of voting in the majority, allows a Chief Justice broad discretion to assign each opinion in a way which comports with his or her goals for the Court. (10) Chief Justice Roberts has recorded a notably high rate of voting in the majority throughout his tenure on the Court, (11) but this trend reached a historic peak during October Term 2019 when Roberts cast his vote with the majority ninety-seven percent of the time. (12) As a Chief Justice who almost always votes in the majority, Roberts finds himself "uniquely positioned" to strategically assign opinions in order to "control the narrative of the court," a position no Justice has occupied since Chief Justice Charles Evans Hughes in the 1930s. (13) Given the rare position in which Chief Justice Roberts found himself in October Term 2019, this Note explores to what extent Roberts may have used the assignment power this term in order to pursue his goals, and whether those goals were grounded in substantive policy outcomes, organizational concerns, institutional legitimacy, or some combination thereof.

Part I of this Note will outline the scope of the assignment power, focusing on the strategic considerations a Chief Justice can make in assigning opinions. Part II will analyze Roberts's voting and assignment patterns in October Term 2019, specifically applying the earlier discussions to his assignment choices in three key cases decided this term. Part III will focus on Chief Justice Roberts's jurisprudential values and explore how these concerns might have informed his decision making in October Term 2019. Finally, this Note concludes by asking to what extent Roberts's recent assignment choices are consistent with his signature promise to "call balls and strikes," and whether Roberts will be able to continue to wield such widespread influence on a changing Court.

1. THE ASSIGNMENT POWER

   "Although the Constitution is virtually silent about the offices of the Chief Justice and the Associate Justices of the Supreme Court," the parameters of the office of the Chief are understood today to include various procedural and substantive duties. (14) The Constitution only explicitly tasks the Chief Justice with presiding over impeachment trials. (15) But "[t]hrough gradual statutory and customary accretion,"" (16) the office has come to include procedural duties as to the Supreme Court, such as presiding over oral arguments and presenting each case to the other Justices at conference, (17) and duties and bureaucratic powers as to the federal judiciary as whole. (18) The assignment power is regarded as one of the most potent tasks the Chief Justice undertakes, due to the manner in which "the Chief Justice may seek to influence the Court's agenda and the course of legal development through the exercise" of assigning opinions. (19) Justice Felix Frankfurter characterized the assignment power as the Chiefs "single most influential function." (20) This power "allows the chief justice... to frame whether the opinion is going to be written by... a broad brush, or a narrow one." (21) When making an assignment, the Chief must balance these policy objectives with the expectations of the other Justices, as "[f]ailure... to equitably distribute assignments across Justices will inevitably lead to tension on the Court." (22) In addition to any policy and peacemaking goals the Chief Justice may have, the assignment power can be employed to "enhance the legitimacy of the Court's opinions... and ensure that the Court completes its work in a timely fashion." (23)

   The most direct way in which the Chief Justice can use the assignment power to pursue his or her own objectives as to the trajectory of the Court is through self-assignment of the majority opinion. The tendency of Chief Justices to assign themselves important opinions can be traced back to the Marshall Court. (24) The Chief has the most control over the scope and impact of the opinion when he writes it himself. The Associate Justices understand this and even "expect him to write in those [big] cases to lend the prestige of his office to the Court's pronouncements." (25) Because the Chief Justice "occupies a singular role" in the mind of the American public as the embodiment of the Court, a majority opinion penned by the Chief in a divisive case can "serve[] a signaling function" to the country that the issue 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." (26) Examples of self-assignment by former Chief Justices that have had significant impact on the public perception of the Supreme Court include landmark cases like Marbury v. Madison, (27) Brown v. Board of Education, (28) and United States v. Nixon. (29) Relatedly, data analysis of the opinion assignments by all Chief Justices from 1921 (Taft) to 1973 (Burger) suggests that Chief Justices are more likely to assign themselves "important" cases and unanimous decisions. (30) Notably, while Chief Justices are generally most likely to assign themselves unanimous decisions, they are also more likely to assign themselves the opinion in highly divided cases than in moderately divided cases. (31)

   This suggests that, although unanimous decisions are most preferable, there may be an "added impetus for writing opinions for a highly divided court" because "when a Chief Justice is in the unique position of being able to make or break a given Court majority... his exercise of the self-assignment prerogative gives him the potential to structure and guide the parameters of the final majority decision." (32)

   Of course, a Chief Justice cannot assign every opinion to himself. There is a "norm of equal distribution" among the Justices, and failure to adhere to this distribution can be counterproductive to a goal of cohesion on the Court. (33) While they must strive to achieve equality, and usually "achieve remarkably even distributions of opinions," Chief Justices are not precluded from "pursu[ing] strategic objectives" and even "favoring those who are ideologically most like themselves." (34) In making assignment decisions to the Associate Justices, some Chiefs focus on policy considerations, while others are swayed by organizational concerns. "[T]he rational strategy" for a substantive policy-oriented Chief Justice "is to assign the opinion to the justice whose views are most like his own on the issue being decided." (35) In this way, a Chief Justice most concerned with the impact on a given area of law can assign opinions so as to maximize policy gain and minimize policy loss. (36)

   There are other strategic objectives, besides substantive policy-setting, that a Chief Justice may consider in approaching the assignment of opinions. Some Chief Justices have organizational concerns: Chief Justice Rehnquist famously used the assignment process in order to maximize efficiency and reduce the amount of time between oral argument and the issuance of an opinion. (37) Chief Justice Rehnquist was open with the Justices about this goal, incentivizing them to do their work quickly if they wanted the opportunity to write more opinions later in the Term. (38) A Chief Justice may also consider the eventual reception of a published opinion when making the opinion assignment. Having a stronger majority behind the decision in a given case can "give weight and solidarity" to the opinion of the Court. (39) Chief Justice Taft, for example, suggested that the Chief Justice "is expected to promote teamwork by the Court" by seeking more unanimous opinions and broader voting coalitions so that the Court's decisions can have more weight and influence. (40) As such, a Chief Justice with concerns about institutional legitimacy might seek to use the assignment power in such a way as to attract...