Strategy and constraints on Supreme Court opinion assignment.

• Author: Wahlbeck, Paul J.
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

The assignment of the Supreme Court's majority opinions is one of the principal prerogatives enjoyed by the Chief Justice. A strategic Chief Justice is able to influence the course of legal policy through agenda setting; that is, the Chief Justice exercises influence over policy by choosing the Justice who will author an opinion, thereby determining which policy alternative will be developed in a majority opinion draft. Through strategic opinion assignment, then, the Chief is able to guide the Court to an outcome that is closest to his preference or that will result in the least policy loss. Despite the importance of this prerogative for agenda setting and the development of the law, the Chief Justice operates within twin constraints: the need for majority support for the proposed opinion and the efficient operation of the Court. In particular, the Chief Justice often assigns opinions to Justices with whom he allies in order to maintain fragile conference majorities. Chief Justice William H. Rehnquist also asserted that his assignments were based on the need to complete work on the cases and to maintain an equitable distribution of cases among the Justices. Using data drawn from the papers of Justice Harry A. Blackmun and other sources, I test these expectations through an examination of opinion assignment during the Rehnquist Court from October Term 1986 through October Term 1993.

INTRODUCTION

Many scholars have characterized the Chief Justice as first among equals. (1) The absence of additional powers of influence led former Chief Justice William H. Rehnquist, before his ascension to the center seat, to describe the Chief Justice as presiding "over a conference not of eight subordinates, whom he may direct or instruct, but of eight as sociates who, like him, have tenure during good behavior, and who are as independent as hogs on ice." (2) Nevertheless, the Chief Justice enjoys a powerful prerogative in the assignment of majority opinions. The power to assign authorship of the Court's opinion provides the Chief with the capacity to direct the Court's policy-making agenda. This assignment power is unique among the Chief's duties in its ability to shape the development of the law.

The Justices themselves recognize the potency of the Chief's assignment power. In the well-known exchange between Justice William O. Douglas and Chief Justice Warren E. Burger leading up to Roe v. Wade, (3) Douglas criticized the assignment of the opinion to Justice Harry A. Blackmun. When the Court chose to hold Roe for reargument in the 1972 Term, Douglas drafted a dissent that lay bare what he saw as the manipulation of the Court through opinion assignment. He suggested that the Chief Justice's goal in assigning the opinion to Blackmun was "to keep control of the merits," lamenting that this strategy "makes the decisions here depend on the manipulative skills of a Chief Justice." (4) Regardless of one's view of Chief Justice Burger's assignment in Roe, Douglas's claims certainly merit attention, as the Chief Justice may seek to influence the Court's agenda and the course of legal development through the exercise of his opinion assignment powers.

There are other effects, beyond agenda setting, that opinion assignment can have on the Court. Most notably, the choices that the Chief Justice makes in carrying out this duty affect the operation of the Court. The Justices make clear that they have expectations for how the Chief will discharge this duty. Specifically, they expect to obtain their "fair share" of assignments. Failure of a Chief Justice to equitably distribute assignments across Justices will inevitably lead to tension on the Court. Douglas's complaints about Chief Justice Burger culminated in his cry that Burger's assignment tactics in Lloyd Corp. v. Tanner (5) led "to a frayed and bitter Court full of needless strains and quarrels." (6) Equity, though critical, is not the lone expectation held by the Justices. Other norms can affect the functioning of the Court--assigning opinions, for instance, to Justices who efficiently dispatch their writing chores. As I will discuss shortly, former Chief Justice Rehnquist gave these factors, dubbed "organizational needs," great significance in his assignment decisions. (7)

In the pages that follow, I will discuss the agenda-setting capacity of opinion assignment. As will be evident, the Chief is able to guide--or manipulate--the Court's deliberation toward options that he most favors, either producing policy gain or minimizing policy loss. This tendency is accentuated in unanimous or near-unanimous cases, but suppressed when the Chief has a fragile majority to preserve. I then discuss the Chief's pursuit of the Court's organizational needs through opinion assignment. As one sees injustice Douglas's letter, it has often been asserted that the Chief's assignment decisions can affect the smooth operation of the Court. Finally, I offer empirical evidence of the causal factors that guided Chief Justice Rehnquist's opinion assignment decisions from the 1986 to the 1993 Terms.

1. THE ASSIGNMENT OF MAJORITY OPINIONS

   When the Chief Justice is in the majority at the conference discussion following oral arguments, it falls to him to assign the majority opinion. (8) On those occasions when the Chief is in the conference minority, the senior Associate Justice in the majority receives the responsibility of assigning the opinion. (9) At the conclusion of every oral argument session, which lasts two weeks, the Chief Justice distributes an assignment sheet to each chambers. Chief Justice Rehnquist remarked, "When I was an associate justice I eagerly awaited the assignments." (10) This assignment sheet lists the assignments made to the Justices, as well as the identity of the assignor if it is not the Chief Justice. (11)

   What accounts for the Chief Justice's choice in assigning opinions? In large part, political scientists explain this choice as an effort by the Chief Justice to advance his own strategic policy objectives, while meeting the Court's organizational needs. Most political scientists who study decision making on the Court point to the Justices' policy preferences as the primary factor. This common perspective assumes that Justices seek to further the legal outcomes that most closely comport with their own personal policy goals. (12) The central role of policy preferences is evident in Justices' decisions to grant or deny certiorari petitions, (13) in their efforts to bargain with and accommodate their colleagues, (14) and even in their decisions to write separate opinions. (15)

   Opinion assignment is thus seen by those who maintain the primacy of policy seeking on the Court as a means by which the Chief Justice pursues his policy goals. As David Rohde and Harold Spaeth put it, "the rational strategy for the assignor is to assign the opinion to the justice whose views are most like his own on the issue being decided." (16) This approach has two potential effects: maximizing policy gain and minimizing policy loss. When the Chief Justice's preferred outcome is in ascendancy, he can maximize policy gain by assigning the opinion either to himself or to someone whose views are similar to his own. In contrast, when the ChieFs views do not hold sway at conference, he can minimize policy loss by joining the majority and assigning the opinion to the Justice in the majority who will do the least damage to legal policy, as he sees it. As Abe Fortas once wrote: "If the Chief Justice assigns the writing of the opinion of the Court to Mr. Justice A, a statement of profound consequence may emerge. If he assigns it to Mr. Justice B, the opinion of the Court may be of limited consequence." (17)

   Conceptually, the Chief uses opinion assignment to influence the Court by using it as an agenda-setting tool. First, by selecting who will draft the majority opinion, the Chief Justice can direct which policy alternatives will receive consideration by the Court. As Justice Douglas asserted in his unpublished Roe opinion, the purpose of the conference discussion is to determine the Court's consensus for disposing of a case, with the assigned author serving as an agent to draft an opinion consistent with that consensus. (18) But the opinion author is able to direct the Court's policy-making attention to a particular policy alternative. In this way, the assigned author has the capacity to set the agenda for the Court, similar to what we see with government officials in other branches who are responsible for recommending a policy alternative from among a set. (19)

   Second, opinion assignment enables the Chief Justice to set the Court's agenda not only by influencing which alternatives the Court considers, but also by guiding the order in which they are considered. (20) Since the majority opinion is circulated before other Justices' draft dissents or concurrences, the majority author can secure preliminary commitments from her colleagues prior to their consideration of competing opinions. Moreover, an assigned author who does not favor the majority view may attempt to form a new majority by adding an alternative to the debate that may not have been considered previously by the Justices. (21)

2. CONSTRAINTS ON AGENDA SETTING

   Even though the Chief Justice can use opinion assignment to advance his policy goals, he cannot pursue that objective without constraint. The Chief operates within limits created either by the press of other goals that he values, such as a harmonious and smoothly operating Court, or by norms that limit his ability to pursue single-mindedly policy-based assignments. (22) As the latter view suggests, the choices available to the Chief may be limited by the expectations held by his colleagues. These expectations could be shaped by formal rules, such as the number of Justices needed to form a majority, or by informal norms, like an equitable distribution of opinions. (23) Another way to...