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Thursday, June 11, 2015
The Chief, the First Amendment, and the assignment power
At CoOp, Ron Collins writes about Chief Justice Roberts' emergence as the Court's leading voice on the First Amendment, a voice that "is already towering over that of others on the Court." Collins emphasizes the number of free speech majority opinions Roberts has authored in his decade on the Court--13, far more than the next two Justices (Scalia and Kennedy) combined, usually (with several notable exceptions) upholding the free speech claim, whether for better or worse.
But as I wrote in a comment to Ron's post, counting majority opinions is confounded somewhat by the fact that, as Chief, Roberts wields the assignment power whenever he is in the majority. And one reason he writes so much more than any other Justice is that he keeps assigning these cases to himself. Obviously, Roberts must hold a generally highly speech-protective vision of the First Amendment (perhaps Collins is correct that it is the most protective on the Court) in order to be in the majority and thus in position to assign the opinion. But Chief Justice Warren also was consistently in the majority in free speech cases, also usually to uphold the constitutional claim. The difference is that Warren assigned many of these cases to Justice Brennan, which enabled Brennan to emerge as the Court's second great First Amendment voice.
Roberts could as easily have assigned some of these cases to, for example, Kennedy--who has joined most of Roberts' free speech opinions and thus shares a similar First Amendment vision--in the same way. That he has not done so could tell us many different things. It could be about Roberts' unique views of the First Amendment and his specific desire to carry the First Amendment mantle. But it also could be about Roberts' unique views of the assignment power.
Update: A reader shares this 2013 Judicature essay by Linda Greenhouse exploring Roberts' self-assignment practices, which notes the prevalence of First Amendment (including religion) cases that Roberts has kept for himself.
Posted by Howard Wasserman on June 11, 2015 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink
Comments
Steve H: That's a good point and a good possibility, although I cannot envision how Kennedy (or anyone else) could have written a more speech-protective opinion in Snyder or Stevens. Was there anything in the Chief's background or career that suggested such an interest in writing on free speech?
And just to move this off the First Amendment for a second: Some have speculated that Roberts may join the "liberals" + Kennedy in Obergefell, in part to keep the opinion away from Kennedy (becauset Scalia is certainly in dissent, were Roberts to dissent, Kennedy would be senior-most in the majority).
Posted by: Howard Wasserman | Jun 11, 2015 5:24:46 PM
Good post with good comments. I suspect that Steve H may be on to something. I would also add that part of it may just be the kinds of cases that the Chief likes to write. He might just enjoy writing on 1A issues more than other issues, so he may end up assigning himself those cases. Hard to know, but all reasons for caution about Ron's conclusions.
Posted by: Orin Kerr | Jun 11, 2015 3:09:12 PM
My impression is that CJR leans *less* speech-protective than Kennedy, and one reason he assigns at least some cases to himself is to ensure that the opinion is narrow enough for him to join it.
Posted by: Steve H | Jun 11, 2015 1:24:40 PM
I see CU as Roberts respecting a colleague's interests. Austin (the case CU overturned) was decided during Kennedy's second full term on the Court; he wrote a vigorous dissent and I think overturning that decision had been a long-term goal for Kennedy. I think Roberts rewarded that interest with the opinion assignment.
Posted by: Howard Wasserman | Jun 11, 2015 1:08:34 PM
My comment didn't show up at all at first, now it's there twice. Oh well.
I think Roberts is motivated by various things here and appears to find free speech cases particularly important & has the assurance to speak for the Court. So, yes, his craftsmanship is likely a big part of it.
The two cases are notable; the concurrence in the abortion protest case was in the eyes of some a quasi-dissent. He did assign Kennedy Citizens United and Kennedy's style is notable in seminal cases of that sort. Roberts does from his votes seem more pragmatic in campaign finance cases, so has a reason to not give them to Kennedy (or Scalia). Some of the other cases, strategic reasons very well might be not as important, so we are left with his personal concern for the issue etc.
Posted by: Joe | Jun 11, 2015 12:59:31 PM
Of Roberts' 13 free speech opinions, Kennedy joined 11 of them; he only split on Williams (as to the result) and McCullen (as to the analysis although not the outcome). So Roberts easily could have assigned some of those 11 to Kennedy, a la Warren. That he didn't suggests something else at work--and you may be right that it is Roberts' skill as a legal craftsman.
Posted by: Howard Wasserman | Jun 11, 2015 10:35:50 AM
One difference between Roberts and Warren is that Roberts is a better legal craftsman while Warren often delegated that to Brennan. Warren also generally agreed with Brennan (except perhaps in obscenity cases) while Roberts sometimes split from Kennedy and Scalia, the two people you might see as ideal craftsman of 1A free speech cases. Roberts is at times more of a Charles Evan Hughes type swing justice in certain cases there (abortion protests, judicial elections etc.).
Posted by: Joe | Jun 11, 2015 10:18:55 AM
One difference between Roberts and Warren is that Roberts is a better legal craftsman while Warren often delegated that to Brennan. Warren also generally agreed with Brennan (except perhaps in obscenity cases) while Roberts sometimes split from Kennedy and Scalia, the two people you might see as ideal craftsman of 1A free speech cases. Roberts is at times more of a Charles Evan Hughes type swing justice in certain cases there (abortion protests, judicial elections etc.).
Posted by: Joe | Jun 11, 2015 10:18:49 AM
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