As we enter peak opinion-release season, we thought it’d be a good suggestion to debate how the justices usually select who writes which opinion. This can be a very massive deal: Whoever writes the opinion, in any case, will get to regulate the narrative.
The most senior justice within the majority will get to assign the writer of that opinion (so if the chief is within the majority, it’s at all times him), and she or he can both assign it to him or herself or one other justice who that individual thinks will be capable to get probably the most votes behind the bulk opinion. This was not at all times the case. Earlier than Chief Justice John Marshall’s appointment in 1801, the court docket adopted the seriatim tradition, through which every justice wrote and delivered a separate particular person opinion. Marshall acknowledged that the seriatim strategy created uncertainty about the legal principle for which a decision stood and diminished the court docket’s potential to determine authority with out an institutional voice. So he persuaded his colleagues to undertake a single written “opinion of the court docket,” and that has successfully been the case ever since. (President Thomas Jefferson, for his half, complained in a single letter that below Marshall, the court docket’s opinions had been delivered “huddled up in conclave, perhaps by a majority of one” and shielded by “the silent acquiescence of lazy or timid associates.”)
The justices resolve who will write which opinion after they vote in convention. The purpose is to make this as equitable as attainable: chief justices have thus tended to assign to each justice about the same number of opinions. However assigning opinions can also be strategic: the assigning justice may select somebody whose views align carefully with the bulk’s reasoning, or alternatively assign it to a justice whose vote seems uncertain, hoping the duty will sway his or her dedication to the bulk place. And chief justices have lengthy reserved the highest-profile circumstances for themselves. In response to an analysis of Roberts’ tenure by Linda Greenhouse again in 2014, he authored 25 of the 85 most salient opinions through which he was within the majority, or about 3 times greater than he would have written below a fair distribution (which is in step with most chief justices earlier than him).
By customized, a brand new justice’s first opinion assignment is often in a intentionally uncontroversial case, and all the different justices then make an effort to affix it. When Justice William Brennan issued his first resolution in 1956 (an 8-1 tax ruling) the lone dissenter, Justice John Harlan II, wrote him a private note saying he was “sorry” that he couldn’t “enroll without delay together with your first.” Extra just lately, Justice Sonia Sotomayor’s first opinion drew a concurrence from Justice Clarence Thomas that criticized the court docket’s apply of utilizing “worth judgments,” whereas Justice Elena Kagan’s first was met with a dissent from Justice Antonin Scalia. It’s not clear in the event that they acquired written (or oral) apologies.