Chief Justice Roberts in His Own Voice: The Chief Justice's Self-Assignment of Majority Opinions

By Greenhouse, Linda | Judicature, September/October 2013 | Go to article overview

Chief Justice Roberts in His Own Voice: The Chief Justice's Self-Assignment of Majority Opinions


Greenhouse, Linda, Judicature


Among the most significant prerogatives that a chief justice enjoys is the power to assign an opinion when in the majority. While The Behavior of Federal Judges only briefly alludes to "a self-expression component of the judicial utility function " for Supreme Court justices, I will indulge the assumption that there is something special about a chief justice's choice of when to speak for the Court. In this essay, I examine the current chief justice's practice of self-assigning majority opinions, with the goal of comparing his performance to the general patterns established by other chief justices.

Among the most significant prerogatives that a chief justice enjoys is one listed nowhere in the United States Code or in the Supreme Court's Rules. It is the customary power to assign the opinion for the Court in any case in which he is in the majority.1 There is a rich literature on the strategy and constraints involved in exercising this power.2 Considerably less attention has been paid to the way in which a chief justice deploys the power of self-expression: assigning a majority opinion to himself.3

I was initially tempted to write, "the ultimate power of self-expression," but of course this is not always or even often accurate. In writing for the majority, a chief justice, no less than any other majority-opinion author, is speaking for the Court, not simply for himself, and if the project is to succeed, he must take those steps necessary to persuade at least four colleagues to stay with him. Greater power of self-expression comes to the author of a concurring or dissenting opinion, but even those categories of opinions are bound by constraints for any justice, not only the chief, who keeps reputational and strategic interests in view.

There are other constraints on self-assignment beyond the need to obtain four other signatures. Given the Court's practice of distributing the work evenly-as least in terms of raw numbers of majority opinions, regardless of the diverse challenges posed by individual cases-it would be highly unusual for any justice to write more than two or three majority opinions from any of the two-week sitting periods.4 So it's incumbent on the chief justice to spread the work around, and to do so with a modicum of fairness. Ever since John Marshall, who replaced the early practice of seriatim opinions with a single opinion for the Court as the norm, chief justices have been moved to assign themselves the most important cases; however, most also seem to have felt some obligation to share at least some of the high-profile assignments while also taking on their share of the "dogs."5

But if self-assignment represents something less than unrestrained self-expression, it is self-expression nonetheless. While The Behavior of Federal Judges only briefly alludes to "a self-expression component of the judicial utility function" for Supreme Court justices,6 I will indulge the assumption that there is something special about a chief justice's choice of when to speak for the Court. Lawrence Baum tells us "judging can be understood as self-presentation to a set of audiences.''7 For most Supreme Court justices, most of the time the notion of "audience" outside the Court's precincts is an abstraction; few people can name most associate justices or ascribe to them any particular set of opinions. (The flamboyantly outspoken Antonin Scalia, along with Anthony M. Kennedy in his outcome-determinative role at the center of a polarized Court, may be current exceptions, along with Sonia Sotomayor, who seems on the way to rock-star status with the general public.)

But a chief justice occupies a singular role, embodying for many Americans the Court that bears his name and, if he is to be successful, exerting what David Danelski calls "task and social leadership.''8 Speaking for the Court through a self-assigned majority opinion invokes both kinds of leadership. It is an aspect of "task" leadership-the chief justice's job of running the Conference and supervising the flow of opinion assignment and preparation. …

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