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Tuesday, June 06, 2017

SCOTUS Symposium: A few more thoughts on opinion assignments

A quick follow-up on Howard's post on the assignment power. There are actually a number of interesting questions worth asking about the opinion-assignment process, and this is as good an occasion as any to raise them.

  1. Should opinions be "assigned" at all? A Supreme Court majority is made up of five to nine people (usually). Those people agree on the bottom line. Is it really necessary that someone have the formal power to designate a person who will write for the group? Would consensus on that question really be hard to reach in a meaningful number of cases? Imagine, in other words, that the five Justices in the Cooper majority talked among themselves for ten or fifteen minutes about how they might propose to write the opinion, whether they wanted to, how busy people were, and whose proposal seemed generally likely to be agreeable to the group. I am strongly tempted by the view that this would work just fine.

  2. Why is the assignment power derived from seniority? Even if you think that someone should have the power to assign opinions, why should length of tenure on the Court be how that's earned? It's not that hard to think of other systems. For one, the members of the majority could just decide who they wanted to decide that question—one vote on the outcome, in other words, and then a further vote among the majority to award the assigning power. If that's too complicated, then why not have people take turns? (Imagine the assignment were made by the member of the majority who had assigned the fewest opinions that Term, ties broken by seniority.) Maybe it would be good to get people in the habit of making assignments or enjoying the privilege of being able to "keep" a case.

  3. Why aren't opinion assignments discussed more? Even if you accept the view that it's useful to have a single person coordinating the majority of the Court's workload (which is, I think, the most compelling practical justification for the current system), should there nonetheless be more discussion of who's going to get what among the Justices themselves? I remember, as a law clerk, waiting for the assignment list to come around on Friday from the Chief's chambers, and often being surprised (sometimes pleasantly, sometimes not) at what our chambers had "gotten." But why is that how it should work? Why should there be surprises on that list, in other words? Of course, assigners (usually the Chief, fairly often others) are free to solicit input from people about which assignments they'd like, and so forth. But is it best to have that solicitation be one-to-one? Should it be a group conversation at Conference?

  4. What does the ability of someone to "lose" or "steal" a majority tell us about the system? The funny thing about opinion assignments is that they're really nothing more than an opportunity to take the first shot at writing for the Court. If a Justice circulates an opinion and members of the majority turn out not to like it, the fact of having been "assigned" the opinion is not going to save them. Similarly, if a separate concurrence in the judgment attracts a majority of the Court, it's the law—whether the person was assigned the opinion in the first place or not. (There are reports that this happened during the Citizens United litigation.)

  5. Why don't dissents get assigned? Unlike majority opinions, dissents aren't formally assigned in the same way. There may be informal coordination among the people who do not expect to join the Court's judgment (more along the lines of the system I imagined above) but there's no "dissent assignment" sheet that goes around. True, dissents don't need to get five votes. But as discussed above in (3), the assignment doesn't ensure that the proposed majority will, either. And many of the other practical justifications for formal opinion assignments apply with equal force to dissents—coordination of workload, for example. Yet dissents get written just fine. To what extent does that cast doubt on the need to assign majorities?

We take the opinion assignment process as it presently exists basically for granted, in other words; but it isn't. It's a product of choices, and we should at least ask whether the choices that have been made are the right ones.

Posted by Ian Samuel on June 6, 2017 at 03:54 PM in 2018 End of Term | Permalink


It was my experience that the main dissents in most cases were assigned by the senior justice in the miniority in much the same way as majority opinions were (with a phone call or quick conversation confirming that the author was willing and a short memorandum confirming). Has that changed over the last 15 years?

Posted by: Andrew Siegel | Jun 7, 2017 9:36:47 AM

As for Question # 2, the Court does so many things through seniority, what one of my colleagues who worked on the Court calls the great lubricant of its business.

Posted by: Howard Wasserman | Jun 7, 2017 7:54:32 AM

Why have written opinions at all?

Setting that (completely serious joke) aside, I think the problem with changing a decision procedure mid-stream is that you need to compensate people, in this case Justice Thomas, who we expect to lose out significantly on both ends. What sort of "buy out" could we have for someone like Justice Thomas, or should the court float the idea of doing away with assignments at some point in the future, say, ten years, so that we see it coming?

Also, in thinking about this, you might want to pay attention to other internal decision rules, such as seniority and committee assignments in Congress---- and why have committees at all?

Posted by: AndyK | Jun 6, 2017 4:11:30 PM

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