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Wednesday, June 07, 2017

SCOTUS Symposium: Even More on Assignments

I'm enjoying the recent posts on the assignment power by Howard and Ian, as well as Steve's interesting post about the purpose of majority opinions. I confess to not being as troubled by the current arrangement as Ian is, though.  Ian asks a number of skeptical questions about the current system for assignments, in which the senior-most Justice has the assignment power; he wonders why it works that way, and whether the system could be designed differently.  I very much agree with Ian that the assignment system is "a product of choices, and we should at least ask whether the choices that have been made are the right ones." But here I think there isn't a huge amount to be gained by changing the rules. A few thoughts after the break.

  1. Why Assign Opinions? Ian asks why there should be an "assignment" at all. Why not just let the majority figure that out on their own on a case-by-case basis? I agree with Ian that such a system would probably work fine. But I don't see any argument that it would be better. You'd have to have additional discussion with each case about who would write (which means less time debating the merits). But figuring out how to spread the workload among the Justices can be a bit of a complicated LSAT logic puzzle, given that not everyone is in the majority for not every case. Having a rule about who gets to assign helps reduce the administrative burden of this complex coordination game.

    In many cases, it's just easier to arbitrarily let somebody decide rather than having to debate the decision from first principles. Anyone who has tried to arrange dinner with a group of friends should know this well. Rather than having an endless about which Sichuan place is the best, or whatever, the best strategy is usually to just declare that you'll defer to X person's choice and leave it at that. Maybe that person won't make the choice you would have made, but you avoid all the wrangling and intense debate about Yelp reviews and all that. 

    Now, I might be more troubled about giving one person the assignment power more or less arbitrarily if I thought the ability to assign was a big deal.  If it's a really significant power, then why should the Justices agree to let that power be distributed based on a somewhat arbitrary rule? Maybe the administrative complexity of debating assignments would be worth it. But Ian's fourth question—about how majority opinions can be "lost" or "stolen"—reveals why I don't think the assignment power is ultimately that consequential. "Assigning" an opinion to Justice X just means that Justice X gets to draft something for other Justices to read; if it's broader or narrower than what was discussed at conference, the other Justices can demand changes, refuse to sign on, and/or draft opinions concurring in the judgment.

    To be sure, the assignment power does matter—sometimes there are Justices who would have signed either a broad or narrow opinion, and so the person who has the power to decide who'll write the first draft gets to shape what the opinion of the Court looks like. In the past, some Chief Justices have been seen as abusing the assignment power; there are some stories in The Brethren about how Chief Justice Burger would play games that frustrated the Associate Justices. But the other Justices have weapons; they can, as noted, refuse to cooperate if the opinion gets assigned to someone who isn't going to write something that really captures the views of the Conference.

  2. Why Seniority?  Ian also wonders why the assignment power is a privilege of seniority.  Here, too, I'm mostly fine with the current system—with one rather significant exception. In general, I think on a court where all the Justices sit for life, distributing privileges by seniority is sensible. By providing a decision rule, it avoids ego-brusing fights that could damage collegiality in an institution where everyone has to work together in relatively close quarters for the rest of their professional lives. And as decision rules go, seniority is pretty fair and neutral: every Justice will eventually earn more seniority, and so every Justice (except for, say, one appointed unusually late in life) can expect to enjoy the privilege at some point in his or her career. If, as I believe, it's simplest to let one person decide these things, deferring to the most senior person seems a defensible method. That justice might not make the best decision, but the more junior justices will get their chance in turn.

    Of course, there are some situations where things work out a little unfairly: where two justices who are ideologically aligned and are also appointed very close in time, the slightly more senior of the two will end up getting a lot more assignment power than the junior one. As Howard notes, in a world where Hillary Clinton won, Justice Sotomayor would have ended up with a lot of power to assign liberal majority opinions; Justice Kagan, despite being appointed only a year later, would have missed out. But that isn't a problem I'm particularly worried about, even if it might be annoying to the more junior Justice in question. 

    I said, however, that I think there is one big exception to my view that the current seniority-based system works well: The Chief Justice. By tradition, the Chief Justice is senior to the rest of the Justices, even if he joined the Court more recently than any of them. And so the vagaries of when the Chief Justice happens to die ends up mattering more than it should. There hasn't been a Chief Justice appointed by a Democratic President in more than 60 years. I don't see a good argument for letting Justices appointed by one party have a monopoly on the assignment power for that long—even if I think that power isn't a huge deal, it still matters. 

    There are lots of ways to solve that problem. One would be to say that the Chief Justice doesn't have seniority over the Associate Justices in terms of opinion assignments. A more radical solution would be to change how the Chief Justice gets designated. Although Article III requires life tenure, and though Article I presupposes the existence of a Chief Justice, I don't see anything in the text of the Constitution that requires that the title "Chief Justice of the United States" stay with one justice for life. Is there any reason to think that Congress couldn't say that Justices sit for life, but that the Chief Justice will be chief for only a set period?  That's how it works on the courts of appeals--the Chief Judge is the senior-most active circuit judge under 65, who then sits for a 7-year term.  Is there any reason to think that system wouldn't be constitutional at the Supreme Court?  I don't see a good defense for having one person be the head of the whole judicial branch for life, especially given the problem of strategic retirements (If another Democrat will get to appoint the Chief Justice in the next half century, it will likely only be because of an unexpected death). I'm sure there is scholarship on this question, though, which I haven't read. 

  3. Assignment of Dissents. Ian wonders why dissents aren't formally assigned like majorities. Here, my sense of the facts on the ground is different: my memory is that the senior-most Justice in the minority does assign dissents, though not through a formal memo. Dissents are a little different because often more people write just for themselves, but my sense is that seniority still matters, at least in situations where there is a big dissent meant to capture the views of three or four justices. 

Posted by Daniel Epps on June 7, 2017 at 12:27 PM in 2018 End of Term | Permalink


Ed Swaine wrote an article on this in Penn Law Review in 2006, arguing that Congress could change the method of selecting or identifying the Chief. The drawback to this has nothing to do with his role on the Court and a lot to do with all the extra duties that go with being Chief, such as his role overseeing the AO and the FJC, as well as ex oficio positinos on boards like (I think) the Smithsonian. The Chief Justice does so much more than the chief of a circuit or district that more institutional memory is required, which makes rotation and less successful system.

On the other hand, civ pro scholars have argued recently that the Chief's greatest political/ideological effect is not within the Court, but in his role appointing people to the Rules Committees. The membership tilts heavily pro-defendant/anti-plaintiff (and anti-litigation), producing similarly aligned rules.

Posted by: Howard Wasserman | Jun 8, 2017 12:27:49 AM

I'm pretty much with Dan on this one.

Posted by: Orin Kerr | Jun 7, 2017 11:18:19 PM

The democratically appointed Chief Justice is a bit misleading in that Earl Warren was appointed by a Republican but that's rather striking. Go back further. Truman appointed a fairly conservative Chief Justice (though I'm not overly informed about Vinson). Even FDR picked a Republican, if one who often voted with the liberals (Harlan F. Stone).

It's academic, but this is an academic blog. Perhaps, a term limit for the role of Chief Justice is appropriate to somehow prevent such one party dominance. Some sort of rotation of office to allow it go back/forth among the parties or something.

Posted by: Joe | Jun 7, 2017 1:48:57 PM

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