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Opinion Assignment on the Rehnquist Court Opinion assignment on the Rehnquist Court 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, Library of Congress, 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 Abe Fortas 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 Earl Warren 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. Thurgood Marshall 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. Felix Frankfurter, “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, Warren Court, 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 Burger Court, 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 United States 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.
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