Tuesday, June 06, 2017
SCOTUS Symposium: Thoughts on the assignment power
Last month's decision in Cooper v. Harris (declaring invalid two North Carolina congressional districts as impermissibly race-based) was notable for the rare lineup: Justice Thomas joined Justices Ginsburg, Breyer, Sotomayor, and Kagan. Less mentioned was that Thomas, as senior-most Associate Justice in the majority, assigned the opinion (draw your own conclusions from Thomas assigning the opinion to Justice Kagan, while Kennedy, placed in the same position, tends to keep the opinions for himself). This is similarly rare: Thomas generally agrees with the Chief (and if not the Chief, prior to last February, Justice Scalia), more-senior Justices who would assign opinions.
I am interesting in writing about the assignment power, particularly for Justices other than the Chief. I would like to look at those who have had long tenures as senior-most Associate Justice (either on the Court or on a segment of the Court) and had either a lot or a little assignment power in that role. I also am interested in the rare assignments, such as Cooper.
For now, I want to address a different point: In December, I argued that the loser in Mitch McConnell's successful Merrick Garland gambit (besides Never-Justice Garland) was Elena Kagan, who lost a chance to be the Justice Brennan of a new liberal-leaning majority. But also losing out on the exchange was Justice Sotomayor, who lost the chance to frequently wield the assignment power (query whether she would have relied on Kagan the way Chief Justice Warren relied on Brennan). Assume Hillary Clinton won and the following: a) Garland is confirmed; b) Ginsburg and Breyer retire within Clinton's first two years. By OT 2018, we have the following Court: Chief, Kennedy,* Thomas, Alito, Sotomayor, Kagan, Garland, Clinton I, Clinton II. That is a 5-4 Court on politically divisive cases--with the four most senior Justices in the minority and Sotomayor the senior-most Associate Justice in the majority, assigning many of these opinions.
[*] For purposes of this exercise, Kennedy could have retired as well.
I think Kennedy assigns a great many cases to others; he just doesn't assign certain major constitutional cases on certain subjects that he feels particularly competent to write about. Overall, there is no "tend[ency] to keep the opinions for himself." Prior to this term, he only assigned himself 4 out of his last 12 5-4, 5-3, or 4-3 assignments, and gave away Whole Woman's Health, a huge abortion case, Alabama Black Caucus, which revived racial gerrymandering, Patel, a major Fourth Amendment case, and Arizona State Legislature, a case about whether states may constitutionally delegate redistricting to independent commissions.
Posted by: Asher Steinberg | Jun 6, 2017 12:33:42 PM
When I saw the line-up, the assignment power of Thomas in that case did come to mind, and it was curious to me that it was not covered more in the analysis. There was some talk of "losing Kennedy" during the writing etc. that might have complicated the backstory.
Posted by: Joe | Jun 6, 2017 9:48:18 AM