Opinion Assignment on the Rehnquist Court

By Maltzman, Forrest; Wahlbeck, Paul J. | Judicature, November/December 2005 | Go to article overview

Opinion Assignment on the Rehnquist Court


Maltzman, Forrest, Wahlbeck, Paul J., Judicature


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

When William H. Rehnquist replaced Warren E. Burger as chief justice in 1986, administration if the Supreme Court changed markedly. In his 17 years on the job, Chief Justice Burger was reputed to act strategically to advance his policy objectives. Critics complained that he cast "phony votes" and manipulated the assignment of opinions to his brethren.1 For example, Justice William O. Douglas charged the chief with attempting to "bend the Court to his will by manipulating assignments" when Chief Justice Burger assigned the task of writing the majority opinion in Roe υ. Wade to his colleague, fellow Nixon appointee Harry A. Blackman.2

As chief justice, Rehnquist claimed that he approached the task of opinion assignment in a strikingly different manner. "This is an important responsibility," Rehnquist once observed, "and it is desirable that it be discharged carefully and fairly."3 Quantitative analysis of patterns in Rehnquist's assignment of opinions confirms that he administered this task largely consistent with the goal of facilitating the smooth operation of the Court, albeit not entirely devoid of strategic calculations.

The picture of Rehnquist's opinion assignment decisions that emerged from our own examination of opinion assignment decisions during the 1987, 1988, and 1989 terms found that concerns for the equitable distribution of assignments across the bench appear to have motivated his assignments. Moreover the chief justice used each justice in his or her domain of legal expertise and assigned opinions disproportionately to justices who completed their work efficiently.4 Rehnquist's preference for allowing the Court's administrative needs to guide his opinion assignments was especially pronounced as the end of the term approached.

Our account certainly comports with Rehnquist's own description of the factors he weighed in making assignments: "I tried to be as evenhanded as possible as far as numbers of cases assigned to each justice, but as the term goes on I take into consideration the extent to which the various justices are current in writing and circulating opinions that have previously been assigned."5 As he further elaborated in a memo to his brethren,

During the past three terms, the principal rule I have followed in assigning opinions is to give everyone approximately the same number of assignments of opinions for the Court during any one term. But this policy does not take into consideration the difficulty of the opinion assigned or the amount of work that the 'assignee' may currently have backed up in his chambers."6

He then mentioned three additional factors that would be accorded greater weight: the timely completion of majority opinion drafts, dissenting opinions, and the casting of votes.

In this article we expand our analysis of Chief Justice Rehnquist's opinion assignments to examine the Court's terms from 1986 through 1993, using the papers of former Justice Harry A. Blackmun. We pay particular attention to the impact of organizational forces like equity and workload, the key factors emphasized by Rehnquist as central to his decision making. We also investigate the role of strategic factors, including Rehnquist's ideological proximity to the justices, the case's importance, and the majority coalition's size at the Court's post-argument conference.

The assignment process

Political scientists devote an unusual amount of attention to the chief justices' opinion assignments. This is not surprising. The nature of the chief's assignments influences both the Court's operations and the direction of public law. In fact, writing the Court's opinions is the justices' core function. How this responsibility is divided inevitably influences the Court's ability to produce quality opinions in a timely manner, while also affecting the personal relationships among the justices. …

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