Opinion assignment on the

Rehnquist’s opinion assignments reflected his ability to balance both the Court’s organizational needs and, occasionally, strategic policy considerations.

by FORREST MALTZMAN and PAUL J. WAHLBECK

ARTVILLE

hen William H. Rehnquist replaced Warren E. completed their work efficiently.4 Rehnquist’s preference Burger as chief justice in 1986, administration for allowing the Court’s administrative needs to guide his Wof the Supreme Court changed markedly. In his opinion assignments was especially pronounced as the 17 years on the job, Chief Justice Burger was reputed to end of the term approached. act strategically to advance his policy objectives. Critics Our account certainly comports with Rehnquist’s own complained that he cast “phony votes” and manipulated description of the factors he weighed in making assign- the assignment of opinions to his brethren.1 For exam- ments: “I tried to be as evenhanded as possible as far as ple, Justice William O. Douglas charged the chief with numbers of cases assigned to each justice, but as the term attempting to “bend the Court to his will by manipulating goes on I take into consid- NATIONAL GEOGRAPHIC SOCIETY assignments” when Chief Justice Burger assigned the task eration the extent to of writing the majority opinion in Roe v. Wade to his col- which the various justices league, fellow Nixon appointee Harry A. Blackman.2 are current in writing and As chief justice, Rehnquist claimed that he approached the task of opinion assignment in a strikingly different manner. “This is an important responsibility,” Rehnquist Justice Harry A. Blackmun, whose papers contain once observed, “and it is desirable that it be discharged 3 the assignment sheets carefully and fairly.” Quantitative analysis of patterns in that the chief justice Rehnquist’s assignment of opinions confirms that he circulated at the close of administered this task largely consistent with the goal of every oral argument. facilitating the smooth operation of the Court, albeit not entirely devoid of strategic calculations.

The picture of Rehnquist’s opinion assignment deci- 1. Timothy R. Johnson, James F. Spriggs, II, and Paul J. Wahlbeck, Passing sions that emerged from our own examination of opin- and Strategic Voting on the U.S. Supreme Court, 39 LAW & SOC’Y REV. 349-377 (2005). ion assignment decisions during the 1987, 1988, and 2. William O. Douglas papers, , Draft Memorandum 1989 terms found that concerns for the equitable distri- Opinion, 6/2/1972. According to Douglas, both Burger and Blackman had been in the minority at the Court’s post-argument conference, leading to bution of assignments across the bench appear to have Douglas’s severe criticism of the chief. motivated his assignments. Moreover the chief justice 3. William H. Rehnquist, THE SUPREME COURT:HOW IT WAS, HOW IT IS 297 (New York: Quill, 1987). used each justice in his or her domain of legal expertise 4. Forrest Maltzman and Paul J. Wahlbeck, May It Please the Chief? Opinion and assigned opinions disproportionately to justices who Assignments in the Rehnquist Court, 40 AM. J. POL. SCI. 421-443 (1996).

Volume 89, Number 3 November-December 2005 JUDICATURE 121 circulating opinions that have previ- The assignments made by the argue, “the rational strategy for the ously been assigned.”5 As he further chief justice are also likely to influ- assignor is to assign the opinion to elaborated in a memo to his ence the law’s character. How an the justice whose views are most like brethren, opinion is crafted determines both his own.”9 Yet, policy calculations During the past three terms, the prin- the nature and scope of the law. are not applied consistently across cipal rule I have followed in assigning Indeed, the content of the opinion all cases. While policy views are opinions is to give everyone approxi- arguably has a greater impact on the accentuated in especially salient mately the same number of assign- law than the Court’s disposition of cases,10 the chief justice may assign a ments of opinions for the Court during the case (that is, whether the Court case to a justice closer to the dis- any one term. But this policy does not take into consideration the difficulty of affirms or reverses a lower court). As senting coalition when faced with a the opinion assigned or the amount of Justice once observed, “If narrow conference majority or even work that the ‘assignee’ may currently the Chief Justice assigns the writing a plurality.11 have backed up in his chambers.”6 of the Court to Mr. Justice A, a state- In contrast, the organizational ment of profound consequence may needs model suggests that the chief He then mentioned three addi- emerge. If he assigns it to Mr. Justice justice is constrained by norms dic- tional factors that would be accorded B, the opinion of the Court may be tating a departure from policy-based greater weight: the timely comple- of limited consequence.”8 Which jus- assignments. Instead, the chief uses tion of majority opinion drafts, dis- tice writes an opinion is thus highly the opinion assignment power to senting opinions, and the casting of consequential for the legal choices enhance the legitimacy of the votes. made by the Court. Hence, the chief Court’s opinions, promote harmony In this article we expand our analy- justice’s ability to pursue a particular on the bench, and ensure that the sis of Chief Justice Rehnquist’s opin- vision of the law is exercised in part Court completes its work in a timely ion assignments to examine the through his choice of authors for fashion. According to many studies, Court’s terms from 1986 through each opinion. these goals can be and are met by 1993, using the papers of former Jus- Two explanations dominate polit- paying heed to the justices’ share of tice Harry A. Blackmun. We pay par- ical science accounts of opinion the Court’s workload, efficiency in ticular attention to the impact of assignment decisions: the strategic completing their assigned opinions, organizational forces like equity and application of policy considerations and issue specialization.12 While workload, the key factors emphasized and the pursuit of the Court’s orga- Rehnquist claimed to pay particular by Rehnquist as central to his deci- nizational needs. Most political sci- attention to these considerations, he sion making. We also investigate the entists who study decision making was not unique in the care he gave role of strategic factors, including on the Court attribute primacy to them. Assignments made by Chief Rehnquist’s ideological proximity to the justices’ policy preferences. For Justices and Warren the justices, the case’s importance, example, in explaining opinion Burger suggest that his predecessors, and the majority coalition’s size at the assignment, Rohde and Spaeth too, on occasion took these factors Court’s post-argument conference.

5. Rehnquist, supra n. 3, at 297. Model of Opinion Assignment on the Supreme Court, 57 The assignment process 6. papers, Library of Con- POL. RES Q. 551-563 (2004). Nevertheless, the gress, Memorandum to the Conference, empirical evidence that such assignments mean- Political scientists devote an unusual 11/24/1989. ingful affect the probability of defections is ques- amount of attention to the chief jus- 7. , “The Administrative Side” of tionable. Saul Brenner, Strategic Choice and Opinion tices’ opinion assignments. This is Chief Justice Hughes, 63 HARV. L. REV. 1-4, at 3 Assignment on the U.S. Supreme Court: A Reexamina- (1949). tion, 35 W. POL. Q. 204-211 (1982); Saul Brenner not surprising. The nature of the 8. Abe Fortas, Chief Justice Warren: The Enigma of and Harold J. Spaeth, Majority Opinion Assignments chief’s assignments influences both Leadership, 84 YALE L.J. 405-412, at 405 (1975). and the Maintenance of the Original Coalition on the 9. David W. Rohde and Harold J. Spaeth, , 32 AM. J. POL. SCI. 72-81 (1988). the Court’s operations and the direc- SUPREME COURT DECISIONS, 174 (San Francisco, 12. Sue Davis, Power on the Court: Chief Justice tion of public law. In fact, writing the CA: Freeman, 1976). See also Walter Murphy, Rehnquist’s opinion assignments, 74 JUDICATURE 66- ELEMENTS OF JUDICIAL STRATEGY (Chicago: Uni- 72 (1990); Harold J. Spaeth, Distributive justice: Court’s opinions is the justices’ core versity of Chicago Press, 1964); S. Sidney Ulmer, Majority opinion assignments in the , 67 function. How this responsibility is The Use of Power on the Supreme Court: The Opinion JUDICATURE 299-304 (1984); Elliot Slotnick, The Assignments of Earl Warren, 1953-1960, 30 J. PUB. Equality Principle and Majority Opinion Assignment divided inevitably influences the L. 49-67 (1970); David W. Rohde, Policy Goals, on the Supreme Court, 12 POLITY 318- Court’s ability to produce quality Strategic Choice and Majority Opinion Assignments in 332 (1979); Saul Brenner and Jan Palmer, The time the U.S. Supreme Court, 16 MID. J. POL. SCI. 652-682 taken to write opinions as a determinant of opinion opinions in a timely manner, while (1972). assignments, 88 JUDICATURE 179-184 (1988); Saul 10. Rohde, supra n. 9; Ulmer, supra n. 9; Elliot Brenner and Harold J. Spaeth, Issue Specialization also affecting the personal relation- E. Slotnick, Who Speaks for the Court? Majority Opin- in Majority Opinion Assignment on the Burger Court, ships among the justices. As Justice ion Assignments from Taft to Burger, 23 AM. J. POL. 39 W. POL. Q. 520-527 (1986); Saul Brenner, Issue Frankfurter once explained, “per- SCI. 60-77 (1979). Specialization as a Variable in Opinion Assignment, 46 11. David J. Danelski, The Influence of the Chief J. POL. 1217-1225 (1984). haps no aspect of the ‘administrative Justice in the Decisional Process of the Supreme Court, in 13. Maltzman and Wahlbeck, supra n. 11. For a side’ that is vested in the Chief Jus- Jahnige and Goldman, eds., THE FEDERAL JUDICIAL study showing that Burger gave significant weight SYSTEM 147-160 (New York: Holt, Rinehart, and to these organizational concerns, see Forrest tice is more important than the duty Winston, 1968); William P. McLauchlan, Research Maltzman, James F. Spriggs, II, and Paul J. to assign the writing of the Court’s Note: Ideology and Conflict in Supreme Court Opinion Wahlbeck, CRAFTING LAW ON THE SUPREME COURT: Assignment, 1946-1962, 25 W. POL. Q. 16-27 THE COLLEGIAL GAME (New York: Cambridge Uni- opinion.”7 (1972); Maltzman and Wahlbeck, A Conditional versity Press, 2000).

122 JUDICATURE Volume 89, Number 3 November-December 2005 GARDNER COX, COLLECTION OF THE SUPREME COURT OF THE UNITED STATES As Justice Felix Frankfurter once said, "Perhaps no aspect of the administrative side that is vested in the Chief Justice is more important than the duty to assign the writing of the Court's opinion."

into consideration.13 strategic policy considerations. Did identified the conference majority Inevitably, the Court’s organiza- he live up to this claim? from Blackmun’s docket sheets.16 tional needs and the chief justice’s Each justice maintains a record of strategic policy considerations can Exploring positions taken at conference on conflict when it comes time for the Rehnquist’s assignments their docket sheets, including votes chief to assign one of his colleagues To investigate the factors that influ- on certiorari, the disposition of the the task of writing for the Court’s enced Chief Justice Rehnquist’s case, and other miscellaneous majority. Unlike the chief justice, opinion assignment decisions, we motions. We also used Justice Black- associate justices who make assign- turn to the papers of former Associ- mun’s opinion logs, which docu- ments do not have to balance these ate Justice Harry A. Blackmun. His ment the circulation of opinion competing considerations, as they do papers, housed at the Library of drafts and other correspondence not fill the institutional leadership Congress, contain the assignment such as joinder memos. These opin- role that the chief does. This leaves sheets that the chief justice circu- ion logs allow us to track the work- associate justices free to advance lated at the close of every oral argu- load of each justice. Because our their policy goals through opinion ment session.15 The assignment data are derived from information assignment.14 Although the conflict sheets list the cases assigned to each contained in the retired justice’s between the pursuit of policy goals justice, as well as the identity of the papers, we limit our analysis to the and the safeguarding of the Court’s justice who assigned the opinion if it first eight years of Rehnquist’s stew- organizational needs underlay much was not the chief. The chief justice, ardship that pre-date Justice Black- of the criticism of Burger’s assign- after all, assigns only those cases in mun’s retirement.17 ment decisions, Rehnquist publicly which he was in the majority at the Tables 1 and 2 provide an overview stated that he allowed the organiza- post-argument conference where the of Chief Justice Rehnquist’s opinion tional needs of the Court to trump justices discuss the merits of the case assignments between 1986 and 1993. and cast their preliminary vote. During these eight years, as seen in We also make use of two additional Table 1, Rehnquist assigned 81 per- 14. Maltzman, Spriggs, and Wahlbeck, supra n. documentary sources in Blackmun’s cent of the 976 majority opinion 13. 18 15. Rehnquist commented that “sometimes the papers. To identify the set of justices assignments. Chief Justice Burger assignments come around during the weekend who may receive the assignment, we had controlled a slightly larger pro- after the second week of oral argument, but some- times they are delayed until early the following week.” Rehnquist, supra n. 3, at 296. 16. We used a conservative standard in identify- ing the conference majority. If there was any ques- tion about whether a person was in the majority coalition, such as a notation next to their vote at variance with a majority, we did not place that jus- Table 1. Justices who assigned majority opinions, tice in the majority coalition. 1986-1993 terms 17. Based upon these data, we model the prob- ability of each justice being assigned the majority opinion during the 1986-1993 period. The mod- Assigning justice Number assigned Percent of total els demonstrate that Rehnquist’s assignments are 791 81 primarily based upon his understanding of the William Brennan 102 11 Court’s administrative needs. A multivariate model illustrates that during the 1986-1993 41 4 period Rehnquist was able to strategically steer 27 3 the majority opinion to his colleagues on cases 10 1 that were either particularly salient or where the Sandra Day O’Connor 4 0.4 majority coalition was particularly fragile. Results are available from the authors. The figures below Thurgood Marshall 1 0.1 present bivariate relationships between the Total 976 100 model’s key independent variables and each jus- tice’s probability of receiving an opinion.

www.ajs.org JUDICATURE 123 Table 2. Justices who received assignments, 1986-1993 terms

Justice Number of Number of Number of Percent of assignments for assignments assignments eligible cases where made by made by assignments in majority Rehnquist associate justices William H. Rehnquist 123 (13%) 123 (16%) 0 (0%) 15 William J. Brennan, Jr. 65 (7%) 26 (3%) 37 (20%) 19 Byron R. White 114 (12%) 91 (12%) 23 (12%) 16 Thurgood Marshall 72 (7%) 58 (7%) 14 (8%) 18 Harry A. Blackmun 93 (10%) 68 (9%) 25 (14%) 14 Lewis F. Powell 20 (2%) 18 (2%) 2 (1%) 16 John Paul Stevens 116 (12%) 89 (11%) 27 (15%) 18 Sandra Day O’Connor 120 (12%) 106 (13%) 14 (8%) 16 103 (11%) 89 (11%) 14 (8%) 13 Anthony M. Kennedy 77 (8%) 61 (8%) 16 (9%) 12 David H. Souter 39 (4%) 32 (4%) 7 (4%) 12 28 (2%) 26 (3%) 2 (1%) 12 8 (0.8%) 4 (0.5%) 4 (2%) 12 Total 976 (100) 791 (100%) 185 (100%)

portion of the majority assignments difference in the chance of receiving opinion assignment, saying “Since (86 percent). Still, Rehnquist clearly additional assignments when a jus- there are nine candidates to write had ample opportunity to attempt to tice is running below the Court’s twenty-four opinions, the law of aver- use the assignment process to indi- average number of assignments com- ages again suggests that each cham- rectly affect the scope and nature of pared to being above the Court’s bers will ordinarily receive three the Court’s opinions. average.20 This finding is robust even assignments.”22 The importance of Chief Justice Rehnquist main- withstanding controls for the jus- taking into consideration the senior tained that one of the principal cri- tice’s current workload and the time associate justice’s (SAJ’s) assign- teria he employed was equity. in the term. ments when making his own assign- Indeed, he commented that he gave Even though Chief Justice Rehn- ments was also emphasized by “everyone approximately the same quist does not appear to ensure that Rehnquist’s predecessor. Chief Jus- number of assignments” during any every justice has approximately the tice Burger once asserted that “Even one term.19 The data, however, do same number of assignments in a one change in [opinion assign- not show that he accomplished this term, he was nevertheless attentive to ments] has a domino impact on all goal by favoring justices who the equitable distribution of the other assignments.”23 received fewer assignments than Court’s majority opinions. The con- Figure 1 highlights Rehnquist’s their brethren. cern with equity, however, operated desire to account for the decisions by First, one could look at the num- within each set of assignments the SAJs. The likelihood that a jus- ber of assignments each justice included on a single assignment tice will receive an assignment when received during a term to examine sheet, not by term.21 Chief Justice he or she was in the majority and did the gap between the most prolific Rehnquist was clearly aware of the not receive any assignments from the author and the least utilized justice. expectation that justices will receive SAJ, as seen in Figure 1, is 17 per- Between the 1986 term and the 1993 the same number of assignments cent. If that justice already had two term, there was a difference of at each period. He himself commented SAJ assignments noted on a particu- least four opinions between the jus- on the probability of obtaining an lar assignment sheet, the probability tice who received the most assign- ments and the justice with the fewest 18. Our unit of analysis is the case citation. If received 14.5% of the chief’s assignments. two or more cases were consolidated and decided Those with fewer than the Court average assignments in every term, which in a single opinion, we only included one assign- received 14.2% of the assignments in the next amounts to as much as a 33 percent ment. We use The U.S. Supreme Court Judicial assignment cycle. difference. Database to identify consolidated cases (Harold J. 21. During these eight years, Chief Justice Spaeth, THE ORIGINAL U.S. SUPREME COURT JUDI- Rehnquist circulated 62 assignment sheets. These Second, the probability of receiv- CIAL DATABASE 1953-2003 TERMS, accessed at sheets made on average 15.7 assignments. Some http://www.as.uky.edu/polisci/ulmerproject/sct- assignments were denoted as being made by the ing any one assignment might be a data.htm on 8/1/2005). We exclude all original senior associate justice. function of the justice’s assignment cases. 22. Rehnquist, supra n. 3, at 296. 19. Rehnquist, supra n. 3. 23. Thurgood Marshall papers, Library of Con- totals to date in a term. However, 20. Justices who have more than the Court’s gress, Memorandum to the Conference, there is not a statistically significant average when an assignment is being made 4/28/1978.

124 JUDICATURE Volume 89, Number 3 November-December 2005 quist simultaneously ended up with a pattern that had meaningful dif- Figure 1. Effect of SAJ assignments on CJ ferences across chambers and that assignments, 1986-1993 terms he and his colleagues saw as fair. Inevitably, part of this perception stems from the fact that justices who disproportionately received opin- ions on a term basis are not consis- tently his ideological allies. Beyond equity concerns, Chief Justice Rehnquist gave weight to whether a justice was “current” with his or her work. Although Rehnquist outlined three specific workload criteria, majority opin- ions, dissenting opinions, and votes, only one of these, the circu- Percent of cases assigned Percent lation of majority opinion drafts, reaches statistical significance. With respect to this factor, Rehn- Number of SAJ assignments quist stated in his 1989 memo that when making assignments he would “put more weight than I have in the past” on whether “a chamber has one or more uncircu- lated majority opinions that were assigned more than four weeks pre- Figure 2. Effect of efficiency on viously.” assignments, 1986-1993 terms In Figure 2, we calculate the prob- ability of receiving a majority opin- ion assignment based upon the number of opinions that meet Rehnquist’s criteria of being one month late.24 One’s probability of receiving an assignment from the chief decreases along the number of CJ assigned uncirculated drafts. That the SAJ SAJ assigned does not appear to discriminate received against those justices who are not “current” in their work illustrates the unique administrative responsi- Percent of assignments Percent bilities of the chief justice.

The role of ideology Chief Justice Rehnquist made it a Number of late majority opinion priority to ensure an equal distribu- drafts tion of the Court’s workload and to ensure the timely completion of the Court’s work, but he also recognized the strategic importance of assign- ments. In contrast to the senior asso- of receiving an assignment from tices who received three assignments ciate justices, Rehnquist did not Rehnquist drops to 5 percent. Jus- from the SAJ never received an appear to make assignments dispro- assignment from the chief. By toler- portionately to his allies. In fact, in

24. This figure is based upon a period that ating a small case variance across an average case, justices who were includes both before and after the 1989 memo. chambers in each assignment period not particularly close to Rehnquist There was no discernible difference before, versus after the memo, as to whether Rehnquist put more and not taking that into considera- were more likely to gain the assign- emphasis on the timely completion of opinions. tion during the next period, Rehn- ment than his closest allies. The sen-

www.ajs.org JUDICATURE 125 ior associate justices, however, are significantly more likely to assign opinions to themselves or to their Figure 3. Assignments in important cases, stalwart allies. 1986-1993 terms Even though Rehnquist did not typically assign more opinions to his closest allies, ideology played a prominent role under two condi- tions: important cases and close cases. As Figure 3 makes clear, Rehnquist disproportionately assigned salient cases to Byron R. CJ assigned SAJ assigned

White, Lewis F. Powell, and to him- received self. Indeed, 58 of the 120 (48 per-

cent) opinions assigned in of assignments Percent important cases by Chief Justice Rehnquist went to White, Powell, or himself.25 Although Justice William Brennan, as the senior associate jus- tice, assigned himself a higher pro- Justices portion of important cases than did Rehnquist, the chief disproportion- ately saved important cases for his own chambers. As Rehnquist him- self once noted, “The Chief Justice is expected to retain for himself some opinions that he regards as of Figure 4. Assignments in close cases, great significance.”26 Still, each jus- 1986-1993 terms. tice, except Clarence Thomas and Ruth Bader Ginsburg, received important case assignments for about 10 percent of the cases in which they voted with the majority.27 The other condition under which CJ assigned Chief Justice Rehnquist utilized ide- SAJ assigned ology were close cases. When the received margin at conference was mini- mally a majority or a plurality, of assignments Percent Rehnquist more often assigned the case to the liberal justices voting in the majority. Justices Ginsburg, Thurgood Marshall, David H. Justices Souter and John Paul Stevens more often received an assignment from the chief when they voted with the majority in a close case than did their more conservative brethren. Achieving a balance circulate their opinions in a timely Why might Rehnquist assign such Rehnquist’s opinion assignments manner. The smooth, and by all cases to a more liberal justice rather reflected his ability to balance both than to a conservative ally? Most the organizational needs of the continued on page 181 likely, the pattern reflects a strategic Court and, occasionally, strategic calculation: giving a liberal justice policy considerations. As Rehnquist 25. “Important” cases are those reported on the front page of . Data were the opportunity to write the majority made clear on a number of occa- obtained from http://epstein.wustl.edu/ opinion was more likely to preserve sions, he wanted to ensure that each research/salience.html (accessed on 8/1/2005). 26. Rehnquist, supra n. 3, at 297. the original winning coalition, thus justice had ample opportunity to 27. The absence of important cases assigned to helping to secure the chief’s pre- craft the majority opinion. At the Justices Thomas and Ginsburg undoubtedly reflects the fact that they had joined the bench ferred outcome. same time, he used his power over shortly before the end of the period included in assignments to entice the justices to our data.

126 JUDICATURE Volume 89, Number 3 November-December 2005 Maltzman and Wahlbeck, important cases in which Rehnquist tional needs. Rehnquist’s ability to continued from page 126 was in the majority, he favored col- maintain this balance also helps leagues with whom he was most ide- explain why he was so highly accounts collegial, running of the ological compatible. Second, in cases regarded across an ideologically Court no doubt stemmed in part with the tightest of margins at con- diverse bench. g from Rehnquist’s treatment of his ference, Rehnquist appears to have colleagues (regardless of their posi- favored justices furthest from him— tion on the ideological scale) when it a clear effort to hold together a con- came time to assign the majority troversial opinion. Limiting his FORREST MALTZMAN AND PAUL J. WAHLBECK opinion. strategic use of assignments to a nar- are professors of political science at Still, there are two classes of opin- row range of cases enabled Rehn- George Washington University ions for which strategic considera- quist to balance successfully his ([email protected]; tions appear to have influenced competing goals of shaping the law [email protected]) Rehnquist’s assignments. First, on and managing the Court’s organiza-

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