As we noticed this time period, by late Might the Supreme Court docket begins releasing the majority of its deserves selections, and with it a well-recognized guessing sport begins amongst court docket watchers. If Justice Elena Kagan has not but written from the December sitting (that’s, the instances argued that month), or Justice Neil Gorsuch has already written twice from instances argued in March, observers start to deduce who could also be holding the remaining opinions. The guesses relaxation on a broadly shared assumption concerning the court docket’s inside follow: for the sake of equity, the justices are likely to obtain roughly equal numbers of majority opinions from every oral-argument sitting.
That assumption has a foundation within the court docket’s institutional construction. When the chief justice is within the majority, he assigns the bulk opinion, and should search to be as truthful as attainable. When he’s not, the task falls to the senior-most justice within the majority. That task energy is without doubt one of the court docket’s most consequential inside instruments. The opinion writer does greater than announce the end result. The writer frames the reasoning, manages the breadth of the choice, and infrequently determines how simply the opinion can maintain collectively the coalition that voted for the judgment.
Students have lengthy studied this energy. Elliot Slotnick described an “equality precept” in majority-opinion task and traced opinion task practices from Chief Justice William Howard Taft by Chief Justice Warren Burger. Later work by Sara Benesh, Reginald Sheehan, and Harold Spaeth discovered that the equal-assignment norm has actual pressure, whereas additionally leaving room for strategic habits. Forrest Maltzman and Paul Wahlbeck likewise showed that opinion task within the Rehnquist court docket may replicate strategic issues. Linda Greenhouse later applied this line of inquiry to Chief Justice John Roberts’ self-assignments, emphasizing how a lot institutional that means might be packed into the chief’s option to hold an opinion for himself.
This piece builds from that literature however focuses on a extra particular follow: equality inside every oral-argument sitting. The court docket hears deserves instances in month-to-month sittings, typically working from October by April. The general public authorship puzzle normally develops sitting by sitting. A justice who has not written from January isn’t merely behind for the time period; that justice could also be lacking from a specific batch of instances argued collectively, assigned collectively, and infrequently launched in overlapping waves.
The information right here, based mostly on the Supreme Court Database, cowl signed argued majority opinions from the 1946-47 time period by the 2024-25 time period, paired with vote-level info on which justices have been within the majority. That vote-level layer is essential as a result of a justice can’t obtain a majority-opinion task in a case the place that justice dissented. So a sitting could look imbalanced in uncooked authorship counts even when the obvious hole displays majority participation moderately than a departure from the task norm.
The evaluation asks three associated questions. First, how constantly has the court docket distributed signed majority opinions inside every argument sitting? Second, has that sample modified within the Roberts court docket and within the years since Justice Amy Coney Barrett joined the court docket six years in the past? Third, when the sitting-level sample breaks down, does the reason look like docket construction, majority alternative, shut votes, essential instances, or the id of the assigning justice?
Measuring the norm sitting by sitting
To start out, the graph beneath tracks this task norm over time.
The graph above exhibits how the sitting-level norm is actual, however conditional. It operates most clearly when the docket is sufficiently small to allow tough equality and when most justices are repeatedly out there to jot down for almost all. It turns into more durable to take care of when majority coalitions fluctuate throughout instances, when the chief justice is outdoors the bulk, or when a sitting comprises a number of high-stakes instances which will name for explicit authors.
Throughout full phrases from 1946 by 2024, solely about 28% of October-through-April sittings have been balanced with every justice writing one majority opinion. In different phrases, the court docket has by no means operated underneath a mechanical rule that each justice should obtain and write one majority opinion from each sitting. The norm is extra versatile than that, and the historic file exhibits many sittings the place some justices wrote a number of majority opinions whereas others wrote none.
Probably the most placing historic change within the knowledge comes with the Roberts court docket. From the 1946-47 time period by the 2004-05 time period, solely 17.4% of argument sittings have been balanced inside one majority opinion. Within the Roberts court docket, from the 2005-06 time period by the 2024-25 time period, that determine rises to 59%. On the identical time, the typical writer vary additionally falls sharply, from 2.49 opinions per sitting earlier than Roberts to 1.42 in the course of the Roberts court docket; that’s, the court docket is taking up far fewer deserves instances.
That exhibits a big institutional shift. The court docket didn’t all of a sudden undertake a written rule requiring equal distribution by sitting. However the sensible sample modified. Underneath Roberts, the court docket has way more usually ended a sitting with every justice clustered close to the identical variety of majority opinions.
The smaller trendy deserves docket probably explains a part of the change. Earlier courts repeatedly produced extra signed argued opinions from a sitting, which made excellent or near-perfect distribution more durable. If a sitting produced 15 or 18 signed opinions, some unfold amongst authors was virtually unavoidable. A contemporary sitting with solely seven, eight, or 9 signed opinions offers the assigning justice an easier path to tough equality.
That is additionally essential for a way we perceive the chief justiceship. Roberts is commonly mentioned when it comes to public legitimacy, institutional rhetoric, or the ideological course of the court docket’s deserves selections. Opinion task offers a unique measure of institutional administration. Regardless of the ideological divisions within the instances themselves, the Roberts court docket has been unusually common in distributing majority-writing work by sitting.
If the Roberts court docket is the interval wherein the sitting norm is most seen, then deviations in the course of the Roberts years deserve nearer consideration. They might reveal the situations underneath which the norm offers approach: uneven majority participation, shut votes, essential instances, or moments when the chief justice isn’t within the majority and the task energy shifts to a different justice.
The Barrett period
Justice Amy Coney Barrett’s arrival in 2020 created the present six-justice conservative majority and adjusted the stakes of lots of the court docket’s deserves selections. If ideological depth have been sufficient to disrupt the sitting-level task norm, the post-Barrett court docket can be the pure place to look.
The information present a extra difficult image. From the 2005-06 time period by the 2019-20 time period, earlier than Barrett joined the court docket, 61.5% of Roberts court docket sittings have been balanced inside one majority opinion. From the 2020-21 time period by the 2024-25 time period, that determine fell to 51.4%. That could be a significant decline, however it isn’t a collapse. The typical writer vary for majority opinions barely modified: 1.41 earlier than Barrett, in contrast with 1.43 within the Barrett period.
That discovering complicates the anticipated story. The Barrett-era court docket has issued a number of the most legally and politically consequential selections in current a long time. However the inside follow of distributing majority opinions by sitting seems to have remained broadly intact. The court docket’s deserves outcomes modified extra dramatically than its sitting-level authorship sample.
Vote splits, case salience, and the bounds of the norm
However what can this inform us about strategic assignments from the chief justice or the senior most affiliate justice within the majority? The strongest model of the strategic-assignment speculation begins with shut instances. When the court docket divides 5-4 or 6-3 alongside recognizable ideological strains, the id of the opinion writer can matter an excellent deal. The writer may have to carry a fragile coalition collectively, select how broadly to jot down, or determine how aggressively to maneuver doctrine. If a number of such instances come from the identical sitting, equal distribution could change into much less essential than assigning the fitting opinion to the fitting justice.
The information doesn’t present a easy relationship between shut votes and sitting imbalance. Within the Roberts court docket, sittings with extra one-vote instances will not be mechanically extra imbalanced in uncooked authorship vary. That means that vote cut up by itself is simply too blunt a measure. A routine 5-4 case could put much less stress on the task norm than a landmark case determined by a wider vote. Conversely, a unanimous case should be essential sufficient for the chief justice to maintain or assign the opinion writer intentionally.
Given shut votes alone don’t seem to elucidate when the sitting norm bends, the extra promising concept is interactional: deviations change into extra probably when shut votes, authorized significance, and majority-opportunity constraints converge in the identical sitting. That can also be the speculation most according to how the court docket works. Task isn’t a numerical train carried out after the time period ends. It’s a case-by-case alternative made inside a particular majority coalition.
The task norm additionally is determined by who’s doing the assigning. The chief justice assigns the bulk opinion when he’s within the majority. When he’s not, the ability strikes to the senior-most justice within the majority. That shift issues as a result of it normally happens in a particular subset of instances: instances the place the chief justice disagrees with the court docket’s judgment or reasoning.
In these instances, task authority could cross to a justice with a unique institutional function, totally different ideological commitments, and totally different incentives. Through the Roberts court docket, a non-chief task usually alerts that Roberts was outdoors the bulk. That reality alone makes the case uncommon. The task alternative then turns into particularly revealing as a result of it’s made by a senior affiliate justice inside a coalition that excluded the chief.
The combination knowledge recommend that sittings are typically extra balanced when the chief justice assigns all or practically the entire majority opinions. That discovering deserves some qualification although. Non-chief assignments will not be randomly distributed throughout the docket. They come up when the chief is outdoors the bulk (final time period, he was within the majority in 95% of instances), which frequently means the case is extra ideologically uncommon or coalitionally unstable. Nonetheless, the sample is essential. The equality of opinion norm could also be best to take care of when one assigner controls many of the sitting and is dedicated to managing the court docket’s workload throughout all 9 chambers.
Non-chief assignments elevate a unique chance. A senior affiliate justice assigning from inside a narrower coalition could care extra about preserving that coalition or shaping the doctrinal course of a specific case than about sitting-wide equality. That doesn’t imply non-chief assignments are improper and even uncommon. It means they’re the locations the place the task norm is almost definitely to disclose the interplay between inside process and substantive disagreement.
What this all means
The Supreme Court docket’s opinion-assignment practices are normally invisible to the general public. Authorship is seen solely on the finish, when the court docket releases an opinion. However the sample of authorship throughout argument sittings gives a technique to research one of many court docket’s most essential inside norms.
The information present that sitting-level equality has change into rather more widespread within the Roberts court docket than within the earlier trendy court docket. The post-Barrett court docket has not deserted that sample, whilst its deserves docket has produced a number of the most ideologically salient selections in recent times. The extra fascinating story lies within the exceptions: sittings the place authorship diverges from the anticipated sample.
These deviations must be understood in numerous methods. Some are merchandise of docket dimension. Some replicate majority alternative, as a result of a justice who isn’t within the majority can’t obtain the bulk opinion. Some come up when the chief justice is outdoors the bulk and task energy shifts to a senior affiliate justice. And a few could replicate the strategic task of essential or carefully divided instances to explicit authors.
The sitting-level norm due to this fact offers a helpful technique to see the court docket as an establishment. It exhibits the court docket managing workload, preserving collegial regularity, and typically adapting that to forming coalitions.