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Research Note Majority Opinion Assignment in Salient Cases on the U.S

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Research Note Majority Opinion Assignment in Salient Cases on the U.S Research Note Majority Opinion Assignment in Salient Cases on the U.S. Supreme Court: Are New Associate Justices Assigned Fewer Opinions?* Saul Brenner Are new associate justices on the United States Supreme Court assigned fewer salient opinions than can be expected by chance? This question was investigated for the 1930 to 1995 terms of the Court, a sixty-six-year period in which thirty-two new associate justices took their oath of office. I discovered that first-year associate justices were assigned less than half the opinions than can be expected by chance. Second-year associate justices, however, were not disadvantaged in opinion assignment in the salient cases. After hearing oral arguments in a case, the U.S. Supreme Court justices meet in secret conference to decide, by formal vote, whether to affirm or to reverse the decision of the lower court. This vote is called the conference vote on merits. If the chief justice is in the majority at the conference vote, he assigns the majority opinion. He can assign the opinion to himself or to any other justice who voted with the majority. If the chief jus- tice is in the minority at the conference vote or fails to vote, the senior associate justice in the majority makes the assignment. On the Warren Court, for example, Chief Justice Warren assigned 1,319 of the 1,538 opinions, or 86 percent; Frankfurter assigned 91, or 6 percent; Black 71, or 5 percent; and four other associate justices 57, or 4 percent (Segal and Spaeth, 1993:264). Because different majority opinion writers are likely to draft different majority opin- ions, it is important who is selected to write the majority opinion. And it is crucial who is chosen to write the majority opinion in salient cases, for these cases are more likely to influence both the future decisions of the Court and the future direction of American society. It is not surprising, therefore, that a host of Supreme Court scholars have inves- tigated the determinants of majority opinion assignment in salient cases. (For a partial list, see the studies cited in the “Hypotheses” section of this research note.) I will determine the extent to which the majority opinions in salient cases are self- assigned, assigned to a freshman associate justice, or assigned to another associate jus- tice. I am particularly interested in ascertaining whether first-year and second-year asso- ciate justices on the Court are assigned fewer majority opinions in salient cases than can be expected by chance. This question is compelling because the prior research does not answer it. * I want to thank Gary Rassel and Ted Arrington for their help with this research note. The Justice System Journal, Volume 22, Number 2 (2001) THE JUSTICE SYSTEM JOURNAL Hypotheses Chief justices assign most of the majority opinions in the salient cases. Chief Justice Vinson, for example, assigned 78 percent of these opinions, while Chief Justice Warren assigned 92 percent.1 And we know from the prior research that the chief justices tend- ed to self-assign in salient cases. Brenner (1993), for example, inspected majority opin- ion assignment in salient cases in the 1801 to 1989 era and discovered that the chief jus- tices self-assigned in 35 percent of the cases in which they were in the majority coali- tion. The percentages were somewhat lower for the Stone (23 percent), Warren (26 per- cent), Burger (28 percent), and early Rehnquist (20 percent) Courts. But even these lower percentages indicate that the chief justices favored themselves in these cases.2 When an associate justice assigns the opinion in a salient case, we expect a great deal of self-assignment for some of the same reasons why a chief justice is likely to self-assign (e.g., the desire to further his policy goals, the pleasure he gets out of doing important work.) Based on this analysis, it can be expected that: H1 The chief justices or the other assigning justices will author more majority or plurality opinions in salient cases than can expected by chance. But whether first-year and second-year associate justices will be assigned fewer majority opinions than can be expected by chance is uncertain. Elliot Slotnick (1979) was the first scholar who explored the assignment of majority opinions in salient cases to freshmen justices. Slotnick inspected the opinion assignment in salient constitution- al cases in the 1921 to 1973 era and discovered that first-year justices were assigned to write 7.9 percent of the opinions. This contrasted with 9.3 percent for second-year jus- tices, 6.6 percent for third-year justices, 5.9 percent for fourth-year, and 4.75 percent for fifth-year. But there are at least four problems in interpreting Slotnick’s findings. First, should we compare the first-year results (7.9 percent) with the second-year (9.3 percent) and conclude that the first-year justices are given fewer assignments, or should we com- pare the first-year results with all subsequent years, which might suggest a different con- clusion? Second, we do not know whether the 7.9 percent statistic is higher or lower than can be expected by chance. To answer this question, we need to know how often the first-year justices were members of the majority coalitions in the salient cases and the sizes of these coalitions. Slotnick does not supply this information. Third, Slotnick’s 7.9 percent statistic includes self-assignments by first-year chief justices. But it cannot be expected that the first-year chief justices will author fewer opinions in salient cases. Indeed, the converse is more likely. Finally, Slotnick includes all the salient constitu- tional cases whether there is a first-year justice on the Court in the majority coalition in that case or not (Rathjen, 1980). It is possible that this approach biases the result. It is 1 Data derived from Spaeth’s data set (ICPSR 9422). 2 In arriving at these findings, Brenner used the Congressional Quarterly’s list of salient cases. Epstein and Segal (2000:78) employed the New York Times list and obtained somewhat less dramatic results. (Compare Brenner’s 26 percent self-assignment result for Chief Justice Warren with Epstein and Segal’s 20 percent result.) 210 BRENNER better to focus on those cases in which the first-year justices are members of the major- ity coalition in the case and, therefore, can be selected to write the majority opinion. The authors of six other studies (Rubin and Melone, 1988; Melone, 1990; Johnson and Smith, 1992; Smith and Johnson, 1993; Smith et al., 1994; Smith, Baugh, and Hensley, 1995) investigated whether the last six new associate justices were assigned fewer opinions in the salient cases. These authors discovered that Scalia authored zero opinions out of fourteen salient cases, Souter zero out of thirty-one, Thomas one out of twenty-eight, Ginsburg one out of thirty-one, and Breyer two out of twenty-six. In con- trast, Kennedy authored four out of thirty-three. The various authors concluded that the first five new associate justices were disfavored in opinion assignment, but Kennedy was not. The authors of these six studies, however, used various measures of saliency and, therefore, their findings are not comparable with each other.3 I assume that first-year associate justices will be assigned fewer majority opinions in salient cases than can be expected by chance for three reasons: First, if H1 is supported, then the assignment rate for the nonassigning justices, including the first-year justices, will be low. Second, the assigning justices might believe that the first-year associate jus- tices are experiencing acclimation problems (see Hagle, 1993:1144). Third, the opinion assigners may be uncertain whether the first-year justices are experiencing acclimation problems and may wait until the new justices have written one or more opinions in non- salient cases before evaluating whether they can do a good job in salient cases. Thus: H2 First-year associate justices will be assigned fewer majority or plurality opinions in salient cases than can be expected by chance. Finally, if both H1 and H2 are supported it is uncertain how these results will influ- ence whether the other associate justices will be assigned more or fewer majority opinions to write in salient cases. In the absence of this information, it is reasonable to posit that: H3 The other associate justices will be assigned approximately the same amount of majority or plurality opinions in salient cases as can be expect- ed by chance. I also want to test whether second-year associate justices on the Court are likely to write fewer opinions in salient cases. I do not expect the second-year justices, or anyone else, to do as well as the chief justices or other opinion assigners. But it is uncertain whether they are likely to do as well as the other senior associate justices on the Court. Nevertheless, I will posit hypotheses parallel to those that pertain to first-year justices: 3 Two of them used the covers of the advanced sheets of the U.S. Supreme Court Reports, Lawyer’s Edition; two employed both the New York Times review of the term in question and Congressional Quarterly’s list of major decisions; and two used the New York Times list alone. The Kennedy study, in addition, pertains to a longer freshman period of time than the other five studies. 211 THE JUSTICE SYSTEM JOURNAL H4 The chief justices and other assigning justices will author more majority or plurality opinions in salient cases than can be expected by chance.
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