The Appendix to this Article may be viewed at this link.
This November, like every November for decades, the Harvard Law Review published its annual review of the U.S. Supreme Court’s most recently completed Term — October Term 2014.1 The November issue’s main event is the Foreword written by a distinguished legal scholar reviewing the Court’s decisions that Term,2 followed by a series of faculty case comments3 and student essays discussing the “leading cases” of the Term.4 As in past Novembers, there is a section buried at the very end of the issue and largely overlooked by most readers called The Statistics, consisting of a series of tables setting forth statistical facts about the Term.5 There is no accompanying textual analysis.
What readers today fail to appreciate is how much the Harvard Law Review’s current approach to reviewing the Supreme Court’s Term differs from its original approach, which began in the early twentieth century. Indeed, it has gone completely topsy-turvy. When the Harvard Law Review first began to publish articles regularly reviewing the Supreme Court’s work, the faculty-authored articles focused primarily on the statistics of the Court and mostly eschewed any substantive discussion of the rulings themselves. What was once the headliner, authored by the most famous law professors and legal scholars of the day, has become an incidental, mostly forgotten sideshow compiled by anonymous law-student editors.
Harvard Law School Professor Felix Frankfurter championed the original approach. Beginning ninety years ago and continuing until he left the Harvard Law faculty to join the Court in 1939, Justice Frankfurter regularly published in the Harvard Law Review statistical studies of the Supreme Court’s work entitled The Business of the Supreme Court. Justice Frankfurter had a series of coauthors: He began in 1925 with his Harvard faculty colleague, former student,6 and future Harvard Law School Dean James Landis,7 with whom Justice Frankfurter published in 1927 an identically named book.8 When Landis moved in 1933 to the Federal Trade Commission,9 Justice Frankfurter’s coauthor for several years became another former student10 who had just joined the Harvard Law faculty, Henry M. Hart, Jr.11 And then finally, Justice Frankfurter was joined by a then-current law student and future judicial clerk, Adrian Fisher,12 in analyzing the statistics for the Supreme Court’s October Terms 1935 and 1936.13 In 1940, the year after Justice Frankfurter joined the bench, Professor Hart published the last in the faculty-authored series of The Business of the Supreme Court articles, analyzing the statistics of October Terms 1937 and 1938.14
The Business of the Supreme Court deliberately focused on the statistics of the Court’s work, rather than on the substance of the Court’s rulings. Justice Frankfurter believed that the Court’s “judicial statistics tell a deal of the tale” in understanding the Court and its operations.15 Justice Frankfurter was a staunch advocate for such statistical analysis, contending that “an adequate system of judicial statistics . . . will, through the critical interpretation of the figures, steadily make for a vigorous and scientific approach to the problems of the administration of justice.”16 “A survey of the Court’s work makes abundantly clear that opinions only in part tell the story of its labors,” Justice Frankfurter explained.17 That is why Justice Frankfurter’s and then Hart’s annual reviews made plain that the “dramatic issues” within the Court’s individual opinions were “not the immediate concern of the papers in this series. . . . This is a study not of product, but of form and function.”18 “[I]ntensive analysis . . . of the substantive issues before the Court . . . is no part of the concern of this series of papers.”19
In 1949, soon after the Harvard Law Review celebrated Justice Frankfurter’s tenth year on the Court,20 the Review’s student editors first began regularly to dedicate the November issue to a systematic review of the Court’s prior Term.21 Even then, Justice Frankfurter’s continuing influence on the Review was evident. The November 1949 issue began with an article by Justice Frankfurter titled “The Administrative Side” of Chief Justice Hughes,22 followed immediately by an article by Edwin McElwain, another former Frankfurter student,23 titled The Business of the Supreme Court as Conducted by Chief Justice Hughes.24 The student editors also included for the first time a student-authored statistical analysis of the Court’s most recently completed Term, October Term 1948; they titled the analysis The Business of the Court in keeping with Justice Frankfurter’s original 1925 title of his own statistical analysis of the Court’s work.25 Unlike Justice Frankfurter, Landis, and Hart, however, the Review did not limit its analysis of the Court’s Term in the November issue of the Harvard Law Review to the Court’s “Business,” but also included for the first time a series of student-written “notes” on the most important cases of the Term.26 However, consistent with Justice Frankfurter’s emphasis on the statistics, the student editors placed The Business of the Court’s statistical presentation before the case notes.27
With one exception,28 the Review editors retained the heading of “The Business of the Court” in the annual November issue reviewing the Court’s prior Term through 1970, changing the title to simply “The Statistics” in 1971.29 Also, through 1967, the student editors emulated Justice Frankfurter’s heightened emphasis on statistics by placing the statistics up front in the volume before their case notes,30 and they did not move the statistical presentation to its current location — the very end of the November issue — until 1968.31 Since the November 1971 issue of the Harvard Law Review, the renamed “The Statistics” section has, just as it appears in the November issue published this month,32 routinely been placed at the very end — where its title, location, and lack of textual analysis render it a distant relative to the Harvard Law Review’s original, primary focus on judicial statistics.
The purpose of this article is to take a turn back toward Justice Frankfurter’s original vision of the significance of the Court’s “Business.” The article accordingly adds some analytical gloss to the current Review’s un-Frankfurter-like practice of providing bare statistical tables without also gleaning “a deal of the tale”33 that a plumbing of those numbers could tell about the Court. There are many possible stories to be discerned from those numbers. But, because for Justice Frankfurter the distribution of the “opinions of the Court”34 amongst the Justices was always one of the most telling of statistics, this Article will focus on that same statistic. As Justice Frankfurter explained: “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.”35 “[I]f the duty is wisely discharged,” it is “perhaps the most delicate judgment demanded of the Chief Justice.”36
This is also an especially opportune moment to assess the “administrative side” of Chief Justice John G. Roberts, Jr., by taking a close look at how he has been exercising his opinion assignment authority. Chief Justice Roberts completed this past October his tenth Term as Chief Justice. Roberts is the nation’s seventeenth Chief Justice and is currently the tenth-longest-serving Chief in the nation’s history.37 Because Roberts, at age fifty, was the youngest Chief Justice to join the Court since John Marshall in 1801, who was then forty-five, precisely how the current Chief exercises such authority is of more than mere historical interest.38 Marshall famously went on to serve as Chief Justice for more than thirty-four years, longer than any other Chief.39
This Article is divided into three parts. Part I reviews the history of the Chief Justice’s exercise of opinion assignment authority. Part II examines closely what the statistics reveal about the current Chief Justice’s use of such authority. And Part III offers some concluding remarks.
I. The Chief Justice’s Authority to Assign “Opinions of the Court”
A Chief Justice’s authority to assign opinions is highly consequential. Which of the nine Justices drafts the opinion of the Court in any specific case can determine the substance of the Court’s ruling and its precedential impact.40 At conference, Justices vote to affirm or reverse a lower court judgment, but there are invariably many different possible analytical pathways that a majority opinion could pursue consistent with that bottom line. A Justice could draft the majority opinion extremely narrowly, creating little precedent, or just the opposite — draft the opinion in a very broad fashion, for the purpose of establishing a more sweeping precedent. As Justice Abe Fortas once described, “[i]f the Chief Justice assigns the writing of the opinion of the Court to Mr. Justice A, a statement of profound consequence may emerge. If he assigns it to Mr. Justice B, the opinion of the Court may be of limited consequence.”41
The current Chief Justice’s authority to assign the opinions of the Court is not, however, as sweeping as it once was. An informal product of evolving tradition and practices within the Court,42 the Chief’s opinion assignment authority today is limited to those cases in which he is in the majority; otherwise the most senior Justice within the majority has the assignment power. By contrast, Chief Justice Marshall not only personally announced all of the opinions of the Court, even if “contrary to his own judgment and vote,”43 he also assigned himself the responsibility of drafting the opinion of the Court in the vast majority of cases.44
A tradition of “silent acquiescence” also reigned under Chief Justice Marshall, which discouraged public dissent by Justices from the majority view.45 As a result, most of the opinions of the Court handed down by the Marshall Court were both delivered and written by the Chief Justice himself,46 making the longstanding practice of referring to the Supreme Court by the name of its Chief Justice more apt then than it is today. It is doubtful a Chief today could duplicate that feat without triggering a rebellion amongst his colleagues and perhaps even a challenge within the Court to the Chief’s authority to assign opinions.
No less significantly, in Chief Justice Marshall’s time, it was not mandatory that the Justice responsible for authoring the opinion of the Court always circulate the draft opinion to the other Justices’ chambers for their review.47 The other Justices who voted in favor of the Court’s judgment, and whose votes were accordingly the reason why the opinion constituted an “opinion of the Court” with legal force, would not necessarily have the opportunity to review and approve the final opinion prior to its publication.48 Absent such a natural check, the importance of the identity of the Justice responsible for drafting that opinion, and for that reason the significance of the authority to choose that person, was that much greater still. This general practice did not change until 1947, under Chief Justice Vinson.49
The other chambers now carefully review draft opinions and other Justices in the majority can bargain for changes in draft opinions and ultimately even threaten to withdraw their votes if the opinion goes too far astray from reasoning they are willing to join. But, in most cases, the opinion writer has a great deal of discretion in opinion drafting without risking the loss of so many votes as to lose the majority. And, even when such an outcome is at risk, that possibility is what makes the Chief’s assignment of an opinion to a particular Justice all the more important. It can require an especially skilled opinion writer to identify the line of reasoning capable of maintaining (that is, not losing) the majority in a closely divided case.
Although no one has previously undertaken an in-depth statistical review of Chief Justice Roberts’s exercise of his opinion assignment authority,50 the record of prior Chiefs has not escaped close scholarly scrutiny, at least since the late nineteenth century. Political scientists rather than legal academics have done most of this work.51 A few generalizations are possible from that literature surveying the practices of past Chiefs.
First, for the past sixty years, beginning with Chief Justice Fred Vinson’s later years as Chief,52 Chiefs have increasingly sought to assign opinions in a manner that promotes greater parity in the number of opinion assignments that each Justice receives.53 And they do so largely unaffected by how often a particular Justice is or is not in the majority and therefore eligible for the assignment. The Chiefs do, however, take into account assignments made in cases in which the Chief is not in the majority and therefore the assignment is made by another Justice — the most senior joining that opinion. Under this approach, a Justice who is in the majority only half the time would receive roughly the same number of assignments to write an “opinion of the Court” as a Justice in the majority 90% of the time and it would not matter how often the Chief is himself part of that majority.54
The same cannot be said of all Chief Justices prior to Chief Justice Vinson, for whom equality in numbers was not nearly as weighty a concern in opinion assignment.55 As previously described, Chief Justice John Marshall assigned most of the opinions to himself.56 And Frankfurter’s own annual reviews of the Court’s statistics, including opinion assignment distribution, do not leave the impression that numerical equality was nearly as strong a norm in the first half of the twentieth century as it has since become. For instance, in the Harvard Law Review article The Business of the Supreme Court at October Term, 1932 co-authored by Frankfurter and Hart in 1933, they provided a table showing the distribution of opinions of the Court during the prior ten Terms (1923–1932).57 According to that Table, during October Term 1925, the median number of opinions of the Court for each Justice was 21, yet Chief Justice William Howard Taft wrote 37 opinions of the Court and Justices Willis Van Devanter and George Sutherland each wrote only 17.58 During October Term 1927, the median was 22 opinions, Chief Justice Taft wrote 23, and Justices Van Devanter and Sutherland wrote 8 and 9, respectively.59 Between 1930 and 1938, Chief Justice Hughes wrote approximately 21 opinions each Term, while the Associate Justices authored an average of 16 opinions each.60
Second, past Chief Justices’ assignment practices also suggest that Chiefs have regularly taken into account certain strategic considerations apart from numeric equality. Some scholars have concluded based on statistical analysis that some Chiefs overassign to Justices who share the Chief’s own ideology in important cases.61 Others have concluded that in closely divided cases, some Chiefs (but not all) favored assignments to the so-called “marginal” Justice, meaning the Justice whose views were closest to those of the dissenting Justices,62 because that can be the best way to ensure that the resulting (and likely narrower) draft opinion is one that will keep the majority necessary for it to become an opinion of the Court.63
Scholars have also concluded that some Chiefs assign more opinions to Justices with specialized knowledge of a particular area of law, such as civil rights and civil liberties.64 There is also statistical evidence suggesting that Chiefs have given fewer assignments to Justices who are perceived to be less competent or less efficient in opinion production than others;65 Chiefs also appear to have singled out for favorable treatment Justices who are especially able writers.66 Scholars have contended further that their statistical analysis demonstrates that both time constraints toward the end of a Term and a particular Justice’s existing workload have influenced a Chief’s assignment practices.67 Chief Justice Rehnquist made explicit the relevancy of both of these considerations to his opinion assignments in a memorandum to his colleagues.68
Finally, political science scholars have examined whether Chiefs self-assign disproportionately. In terms of the sheer number of opinion assignments, before numerical equality became a more settled norm, some Chiefs clearly assigned themselves an outsized share of the Court’s opinions. Certainly John Marshall did, by leaps and bounds,69 and, as previously described, the distribution of opinion assignments in October Term 1932 leaves little doubt that Chief Justice Taft did not shy away from the practice.70 Since Chief Justice Vinson’s time, however, the principle of numeric equality has become sufficiently weighty that one does not see Chiefs self-assigning in such an outsized way.
Scholars do perceive, however, a practice of Chief self-assignment in the assignment of opinions in the more high-profile, salient, and arguably more important subset of cases on the Court’s docket.71 There are, without question, cases on the Court’s docket that are more important in terms of their legal significance, their public profile, or, relatedly, their associated political controversy. And there are also cases on the docket that are true head-scratchers, in the sense that it is hard to fathom how such a seemingly mundane, technical, and downright uninteresting legal issue made it all the way to the Supreme Court. For the former, scholars have concluded that some Chiefs have not shied away from assigning themselves disproportionately the more important cases,72 which of course may be perfectly sensible given the potential positive symbolic value of the Chief’s authorship.73 For the latter, however, scholars have not found similarly that the Chiefs have assigned more of the less complex cases to the most junior Justice on the bench.74
II. The Opinion Assignments of Chief Justice Roberts
What about the current Chief Justice, John Roberts? What stories do the statistics tell?75 Though diminished since Chief Justice Marshall’s day, the current Chief’s opinion assignment authority remains among his most important administrative responsibilities. Since joining the Court in 2005, Chief Justice Roberts has been in the majority an average of 86.3% of the time, with a single-Term high of 91.8% and a low of 77.3%.76 The current Chief’s percentages are roughly the same or a bit higher than other Chiefs during the past seventy years and lower than Chiefs earlier in the nation’s history.77
Of course, the fact that the Chief was in the majority at the time an opinion was published does not necessarily mean the Chief was similarly in the majority when the initial opinion assignment was made. And it is the most senior Justice in the majority at the time of the initial vote at conference who is authorized to assign the opinion of the Court to a particular Justice. The Chief, like any other Justice, could have dissented at the time of the conference vote and then decided to change his vote in favor of the majority view once he reviewed the draft majority opinion.78 But, for that same reason, if he did switch his vote from a dissent to the majority in a case, an assumption that he assigned the opinion of the Court in that case would in fact be mistaken.
Because, however, there are no public records for the Roberts Court of the votes cast by each Justice at conference, my only option is to acknowledge this limitation, just as prior scholars have done when faced with this same information gap in studying the exercise of opinion assignment authority by previous Chief Justices.79 Fortunately, for the purposes of this Article’s statistical analysis over ten Terms, it is fair to assume that the two votes — the Chief’s conference vote and final vote — are the same with sufficient frequency in the hundreds of cases covered by the database for the analysis to maintain its analytical value.80
With this necessary threshold caveat, what tales do the statistics of his past ten Terms as Chief tell about how Chief Justice Roberts has exercised what Justice Frankfurter described as this most important administrative authority?81 There are several.
First, Chief Justice Roberts has achieved maximum numeric equality in the number of assignments that each Justice receives to write opinions of the Court each Term to an extent unmatched by any prior Chief Justice.82 Indeed, his commitment to numeric equality is so keen that it allows observers to identify instances when a Justice who originally had the opinion of the Court subsequently lost the majority because of later changes in voting.83
Second, Chief Justice Roberts’s unmatched desire for numerical equality has not prevented him from being strategic in deciding which cases to assign to particular Justices based on a case’s relative importance (or the lack thereof), or its difficulty rooted in the closely divided nature of the vote at conference. Like past Chiefs, the current Chief seems to assign the more high-profile and the most closely divided cases disproportionately to certain favored Justices, including himself, with little regard to seniority.84 For the closely divided cases in particular, the Chief appears to place a premium on opinion writers who can write more narrowly and therefore can be more trusted to maintain the majority established at conference. His assignment patterns also suggest a possible practice of assigning the “dogs” (that is, the less interesting cases) of the docket disproportionately to other, less favored Justices.85
Third, the Chief uses his opinion assignment authority to promote other institutional objectives important to him. Like his predecessors, Chief Justice Roberts seeks to promote the stature of the Court and public acceptance of its rulings by assigning cases in a way that challenges the notion that the Court’s decisions merely express the partisan political preferences of the individual Justices rather than their application of neutral legal principles.86 And, unlike prior Chiefs, Chief Justice Roberts does not assign himself more opinions than all other Justices on the Court, does not avoid writing opinions in closely divided cases, and assigns himself a proportionate share of the duller cases — all perhaps as a symbolic expression of his stated preference for judicial modesty.87
First, like his immediate predecessors and unlike Chiefs in earlier times, Chief Justice Roberts has clearly sought to achieve parity in the number of opinions each Justice writes for the Court. The statistics strongly suggest that he has generally strived for what could fairly be characterized as maximum numeric equality, meaning that any differences in the resulting number of opinions were required for the simple reason that the total number of opinions of the Court for that particular Term could not be divided evenly by the number of Justices (nine). For instance, if the Court decided seventy-two cases in a Term, maximum equality would be achieved if each Justice received eight assignments to draft the opinion of the Court. But, if the Court decided seventy-one cases, maximum equality would instead require that all Justices have eight opinion assignments, except one Justice, who would have only seven.
Achieving maximum numeric equality plainly can be challenging. Because the Chief assigns the vast majority but not all of the opinions in a Term — the most senior Justice in the majority assigns in those cases in which the Chief is in dissent — the Chief must coordinate his assignments with those made by others with assignment authority in individual cases. And the decisions made by another Justice with such authority can make it hard for the Chief to achieve numeric equality.
The Court’s own argument timetable and overall Term calendar also pose obvious hurdles to any effort to achieve strict numeric equality in opinion assignments. The Court hears oral arguments in seven monthly argument sessions lasting two weeks, and the Chief makes assignments within a few days after the completion of each session.88 Assignments in prior months necessarily limit assignment discretion in subsequent months because a Justice who has received more assignments than others in an earlier monthly argument session — which will invariably happen because the Court frequently hears more or fewer than precisely nine cases in each argument session when prior assignments are made89 — must receive fewer (or more) later on if strict numeric equality is to be maintained over the entire Term. As described by Chief Justice Burger in commenting on the related challenge of achieving numeric parity in opinion assignments, “[e]ven one change in [opinion assignments] has a domino impact on all other assignments.”90
Statistical assessment of the Chief’s “assignment opportunities” — when both the Chief and a specific Justice are together in the majority — reveals that he nearly always had multiple assignment opportunities for any one Justice in any one argument session.91 It was only on a few isolated occasions that the Chief had only one case that he could possibly assign to a particular Justice.92 No single Justice during his tenure has so frequently and systematically been in dissent as to make it essentially impossible to assign a proportionate share of opinions to that Justice. What nonetheless did make maintaining numeric equality more difficult was when there was a group of Justices in the majority less frequently, which had the same practical effect — sharply reducing the cases that the Chief could possibly assign to any one of them.93
An additional factor can make it even harder for a Chief Justice to achieve maximum numeric equality. Although the Chief’s ability to promote numerical equality is largely limited to the making of the initial opinion assignments at the conference following oral argument, it is the final votes of Justices that determine which opinions are ultimately those “of the Court.” Voting shifts by individual Justices in response to the circulation of draft opinions can result in the loss of a majority, such that the majority becomes the dissent and the dissent the majority.94 When that happens, the Justice who “lost” that majority is likely to have fewer opinions of the Court at the close of the Term. As explained by Justice Ginsburg, “[t]he vote at conference isn’t fixed in stone;”95 those subsequent shifts in votes and sometimes in outcomes are why “[e]very year, a Justice or two will announce one case less than the others.”96https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/10/reading-the-scotus-tea-leaves-on-epas-mercury-rule [https://perma.cc/EKV7-3ADX].
Notwithstanding these several hurdles, Chief Justice Roberts precisely adhered to that maximum equality standard in four of his ten Terms as Chief; for three more he can be fairly characterized as at least roughly achieving the maximum equality standard; and for the final three he missed that high mark more than incidentally. The current Chief’s record is even stronger in this regard than both Chief Justice Burger’s, which is credited with being far more equitable than all of his predecessors, and Chief Justice Rehnquist’s, which was stronger than Burger’s, especially during Rehnquist’s final years on the Court.97
1. Maximum Numeric Equality. — The Chief precisely achieved maximum numeric equality in four Terms: October Terms 2006, 2007, 2012, and 2013. For each of those four Terms, he did so by accounting for the assignments made in cases in which the Chief himself was not in the majority and assignments were consequently made by the most senior Associate Justice in the majority in those cases.
In each of October Terms 2006, 2007, and 2013, the Court decided 67 cases on the merits, which meant that maximum numeric equality required that five Justices receive seven assignments and four receive eight assignments, which is what happened in all three Terms.98 Only Justice Kennedy received eight opinions all three times.99 In October Term 2012, the Court decided 73 cases, and maximum numeric equality required that eight Justices receive eight opinion assignments and one receive nine assignments.100 The Chief achieved maximum numeric equality with each Justice receiving eight opinions except for Justice Ginsburg, who had nine.101
2. Rough Maximum Numeric Equality. — For three of the six Terms in which the Chief did not achieve maximum numeric equality, he can be fairly characterized as at least roughly achieving the maximum numeric equality standard, missing it only by the thinnest of margins and for reasons likely outside his control.
(a). In October Term 2005, maximum numeric equality required that all nine members of the Court write either seven or eight opinions.102 One Term-specific twist was that ten Justices served that Term because Justice O’Connor was on the bench until January 31, 2006, the same day that Justice Alito joined the Court.103 Although neither Justice O’Connor nor Justice Alito wrote seven or eight opinions for the Court, their combined total was seven, which is consistent with the maximum numeric equality standard.104 The only remaining statistic inconsistent with maximum numeric equality for the Term is Justice Scalia’s having written nine opinions of the Court.105 But that number may be misleading because it includes Hudson v. Michigan,106 a case that was reargued in May, after the end of the regular argument sessions.107 Justice Scalia’s opinion in Hudson was also for the Court only in part, and a plurality opinion in part because Justice Kennedy did not join Justice Scalia’s opinion in full and four Justices dissented.108 Those two additional facts suggest that late-breaking postconference disagreements about the opinion rationale, possibly extending to changes in the votes of the Justices and even the majority outcome, may have hampered the Chief’s ability to achieve parity in numbers of opinions.
(b). In October Term 2009, maximum numeric equality required that all nine members of the Court write either eight or nine opinions.109 They all did except for Justice Stevens, who wrote only six,110 which is a remarkably low number especially considering Justice Stevens’s status as the most senior Associate Justice. Here again, there is a ready explanation based on a closer review of that Term’s statistics that explains this discrepancy in a manner consistent with the Chief’s practice of seeking maximum numeric equality.
Justice Stevens’s low number results from his having written no opinions for cases argued that October Term during the November and April argument sessions.111 For November, however, there are two cases for which Stevens likely had the original opinion assignment. The first, Pottawattamie County v. McGhee,112 was argued on November 4, 2009,113 but the writ was dismissed as improvidently granted two months later on January 4, 2010, after the parties settled the case.114 Pottawattamie County concerned the scope of prosecutorial immunity for fabricating evidence — the kind of high-stakes case in which Justice Stevens would likely have been very interested, especially given that he had written the Court’s leading relevant precedent.115 Also argued that same month was a significant patent case, Bilski v. Kappos,116 for which it seems likely that Stevens received the original opinion assignment in November but then lost the majority to Justice Kennedy before the decision was handed down on June 28, 2010, the last opinion day before the summer recess. Justice Kennedy’s opinion is for the Court only in part, and for a plurality of four in other parts. And it is far shorter (only 16 slip opinion pages) than Justice Stevens’s much longer opinion concurring in the judgment (47 slip opinion pages), which was joined by three other Justices.117 There is also an easy explanation for Justice Stevens’s receiving no opinions for that Term’s April argument session. He announced his resignation from the Court on the 9th of that month, and he likely preferred to reduce his workload as he readied himself for his departure only a few weeks later, “after the Court rises for the summer recess.”118
(c). A close examination of the opinion assignments for October Term 2014, just completed, is also consistent with the maximum numeric equality standard. For that Term, all the Justices wrote either seven or eight opinions, except for Justice Kennedy who wrote six and Justice Scalia who is credited with nine.119 Here, the numeric discrepancy seems likely to have resulted from Justice Kennedy’s having lost the opinion of the Court in a case argued during the February session and Justice Scalia’s having gained the plurality opinion in that same case as a result.120 If one added that case to Justice Kennedy’s total, he would have seven, and subtracted it from Justice Scalia’s — which would seem sensible in any event because Justice Scalia’s “ninth” was a plurality and not a true “opinion of the Court” at all — he would have eight. Either way, maximum numeric equality would be readily restored to the opinion assignments for October Term 2014 as well.
3. No Maximum Numeric Equality. — Finally, there are three remaining Terms where the opinion distribution departs far more significantly from the maximum numeric equality standard.121 But, even for these Terms, the lack of strict parity in opinion distribution appears to be largely the result of a significant number of postconference vote shifts by the Justices and therefore the kind of numeric inequality that a Chief would be hard-pressed to prevent. In October Term 2008, Justice Scalia wrote eleven opinions, more than anyone else, with the other Justices writing nine (Thomas and Stevens), eight (Roberts, Souter, and Breyer), or only seven (Kennedy, Ginsburg, and Alito).122 In October Term 2010, there was an equally wide spread: Justice Kennedy had eleven opinions; Justice Scalia had ten; Justices Thomas and Ginsburg each had nine; the Chief Justice had eight; and Justices Breyer, Alito, Sotomayor, and Kagan each had seven.123 The spread in October Term 2011 is less stark but not incidental: Justices Kennedy and Scalia again led the pack with nine and eight opinions, respectively; the Chief Justice and Justices Ginsburg, Breyer, Alito, and Kagan each had seven opinions; and Justices Thomas and Sotomayor both had six opinions.124
As before, one can explain these discrepancies by identifying specific cases in which majorities (and accordingly opinion assignments) appear to have been lost and won between the time of the original assignment and the final opinion announcement months later,125 or just lost because of a subsequent decision to dismiss the writ of certiorari altogether following oral argument.126 But, for these three Terms, the numerical spread is sufficiently great that the number and corresponding weight of the necessary explanations quickly become too heavily compounded by layers of speculation for those explanations to be very meaningful. The better analytical pathway is instead to recognize that notwithstanding the current Chief’s obvious strong commitment to achieving maximum numeric equality, there are practical limits on his ability to adhere to that standard, especially with a closely divided Court.
4. In Comparison to Prior Chief Justices. — Chief Justice Roberts’s record in achieving numeric equality in opinion assignments is better than that of any prior Chief Justice. There is not even a remote contest until Chief Justice Warren because the Chiefs before Chief Justice Vinson did not even make a pretense of seeking numeric equality and Vinson himself did not make equality an important factor in opinion assignments until his final years as Chief.127
Chief Justice Burger’s record of achieving numeric equality was, at the time, far better than that of any prior Chief, including his immediate predecessor Chief Justice Warren. To compare the records of different Chiefs, one can begin with the standard deviations of their assignments for each Term, but the best statistical measure for comparing the records is to calculate, from the standard deviation, the coefficient of relative variation (CRV), which compares the size of the standard deviation relative to the size of the mean. This measure allows for fair comparison of Supreme Court Terms across which the numbers of total opinion assignments differs. The lower the CRV, the greater the extent to which numeric equality has been achieved in opinion assignment among the Justices.128 Chief Justice Burger’s CRV was 0.179, which is much lower than Chief Justice Warren’s, which was 0.240, and far lower still than those of Chief Justices Stone and Vinson, which were both more than twice as high as Burger’s.129
During his first several years as Chief Justice, Rehnquist apparently paid some attention to numeric equality, but “d[id] not appear to ensure that every [J]ustice ha[d] approximately the same number of assignments.”130 Between October Terms 1986 and 1993, according to one study, there was at least a four-opinion difference between those Justices receiving the highest and lowest number of Court opinion assignments, or as much as a 33% differential.131 By contrast, during Chief Justice Rehnquist’s final ten Terms as Chief, my own statistical analysis of opinion assignments makes clear that he paid far closer attention to numeric equality and that he adhered to that standard even more than Chief Justice Burger had and therefore more than any prior Chief.132 Chief Justice Rehnquist’s CRV from October Terms 1994 through 2003 was 0.109, or 39% lower still than Chief Justice Burger’s CRV of 0.179 for October Terms 1969 through 1980.133
Chief Justice Roberts’s record is even stronger. His average CRV for the past ten Terms was 0.105,134 which is (slightly) lower than even Chief Justice Rehnquist’s final ten Terms (which are, in turn, likely to be much lower than his earlier terms as Chief Justice). Chief Justice Roberts also achieved maximum numeric equality for four Terms of his ten.135 Chief Justice Rehnquist did not reach that maximum level of equality even once.136
Chief Justice Roberts’s opinion assignments also reflect greater numeric equality than his predecessors along another dimension: the relative absence of a high number of self-assignments. Even Chief Justices like Burger and Rehnquist, who plainly sought to achieve numeric equality far more than Chiefs before them, nonetheless regularly wrote more majority opinions than any other Justice. For instance, during October Terms 1969 through 1980, Chief Justice Burger authored the most opinions in October Terms 1972, 1977, and 1978.137 During October Terms 1994 through 2003, Chief Justice Rehnquist wrote more opinions than any other Justice for five of those ten Terms.138 By contrast, in nine of his ten Terms, Chief Justice Roberts wrote fewer opinions of the Court than at least one other Justice and more often multiple Justices.139 In only one Term (October Term 2007) was there no Justice who wrote more than the Chief; the Chief tied with three colleagues that Term — each writing eight opinions and the other five Justices each writing seven opinions.140
As discussed next, however, the current Chief’s strong desire to maintain maximum numeric equality does not mean that the Chief’s assignments are otherwise random or neutral in nature. A Chief may simultaneously pursue numeric parity along with other strategic and institutional objectives. Chief Justice Roberts has done just that.
All Supreme Court cases are, of course, not equal. Some are a lot more interesting than others. Some are far more important than others. Some, including those in which the vote is closely divided, require opinions that are much more difficult to write than others. And, some are stultifyingly dull. Nor, for those same reasons, are the Justices benignly neutral about a Chief’s opinion assignments. Justices naturally desire the opportunity to write the opinion of the Court in the “big,” more high-profile, salient cases.141 And, conversely, they relish far less the prospect of writing the opinion of the Court in the “small,” mundane, highly technical, and seemingly less important cases.
Studies of prior Chief Justices have all found Chiefs being exceedingly strategic in deciding which Justices write the opinion of the Court in the biggest cases. In assigning the biggest cases, they have frequently favored themselves.142 They have also not shied away from favoring particular Justices, including those closest to themselves ideologically143 or even those most ideologically distant if the Chief believes that such an assignment is the best way to maintain a fragile majority in a controversial case.144
What do the statistics tell us about Chief Justice Roberts? What we learn is that the current Chief has been similarly strategic, albeit with a somewhat different emphasis. Looking just at the Court’s “big” — highest profile — cases, the numeric equality evident in the total number of opinion assignments each Justice received quickly dissipates. More than one-eighth (14%), or 85, of the 600 total cases assigned by the Chief over the past ten Terms fell within my high-profile “salient” category.145Table 5, infra. Salient Court decisions identified for this purpose are those cases identified as the most important cases of the Term by the New York Times for each of the ten Terms. At the close of every Term, the New York Times publishes a separate listing of those important rulings for its readers, typically numbering around ten cases in total but once as high as fifteen (October Term 2014). See The End of the Supreme Court Term, N.Y. Times (July 2, 2006), http://www.nytimes.com/2006/07/02/washington/20060702_SCOTUS_GRAPHIC.html (October Term 2005); Notable Cases of the 2006–7 Term So Far, N.Y. Times (June 29, 2007), http://www.nytimes.com/ref/washington/scotuscases_AFFIRMATIVEACTION.html (October Term 2006); Major Rulings of the 2007–8 Term, N.Y. Times (June 29, 2008), http://www.nytimes.com/imagepages/2008/06/29/washington/29scotus.web.2.html (October Term 2007); Major Rulings of the 2008–9 Term, N.Y. Times (July 1, 2009), http://www.nytimes.com/imagepages/2009/07/01/us/01scotus.graphic1.html (October Term 2008); Major Rulings of the 2009–2010 Term, N.Y. Times (June 30, 2010), http://www.nytimes.com/imagepages/2010/06/30/us/politics/30scotus-graphic.html (October Term 2009); Major Rulings of the 2010–11 Term, N.Y. Times (June 28, 2011), http://www.nytimes.com/interactive/2011/06/28/us/scotus-graphic.html (October Term 2010); Major Rulings of the 2011–12 Term, N.Y. Times (July 1, 2012) http://www.nytimes.com/imagepages/2012/07/01/us/01scotus-graphic.html (October Term 2011); Major Rulings of the 2012–13 Term, N.Y. Times (June 27, 2013), http://www.nytimes.com/interactive/2013/06/28/us/major-rulings-of-the-2012-13-term.html (October Term 2012); Key Supreme Court Decisions in 2014, N.Y. Times (June 30, 2014), http://www.nytimes.com/interactive/2014/06/19/us/major-supreme-court-decisions-in-2014.html (October Term 2013); Adam Liptak & Alicia Parlapiano, Major Supreme Court Cases in 2015, N.Y. Times (July 1, 2015), http://www.nytimes.com/interactive/2015/us/major-supreme-court-cases-in-2015.html (October Term 2014). While certainly far from a strictly scientific measure, the judgment of the New York Times Supreme Court correspondent strikes me as a consistently reliable grounds for identifying the most salient cases of the past ten Terms. For this subset of cases, the Chief Justice did assign a larger share of those cases to several Justices than what strict numeric equality would have provided, and the Chief favored himself above all others. In addition, his assignments favored certain individual Justices more than would have been suggested based on pure notions of either seniority or “shared ideology” with the Chief, although both these factors were clearly relevant.146
Because 14% of all the cases assigned by the Chief were within the salient category, numeric equality would be established if the salient cases constituted that same fraction of the cases assigned to each of the Justices. However, both the Chief himself and Justice Kennedy received salient assignments with twice the frequency of anyone else on the bench. The Chief was highest with 34%, followed by Justice Kennedy at 31%.147 The next highest were Justices Alito, Scalia, and Breyer at 16%, 15%, and 11% respectively, and the remaining Justices were lower: Justice Souter at 8%, Justice Thomas at 5%, Justice Stevens at 4%, Justices Ginsburg and Kagan at 3%, and Justice Sotomayor (alone) at 0%.148
The distribution also changes a bit, but not dramatically, once one takes into account the obvious possibility that the Chief had more opportunities to assign salient cases for some of the Justices than for others.149 The number of salient assignment opportunities naturally depends on how often the Chief and a particular Justice were in the majority together in salient cases, which are more likely to be closely divided than the average case on the Court’s docket.150 For instance, the Chief assigned Justice Souter twenty-four total cases, only two of which were salient, but the Chief had only fifteen total opportunities to assign Justice Souter a salient case, which means he assigned Justice Souter a salient case 13% of the times that he could.151 As it happens, however, Justice Souter is the only Justice for whom there is a marked percentage increase.152 And Justice Kennedy’s percentage is the only one to decrease significantly. Although 31% of his assignments were in salient cases, that amounted to 23% of his assignment opportunities because he was aligned with the Chief in all but three of the 85 salient cases. The percentages for the others all increased (except for the Chief and Justice Alito), but none to the extent Justice Souter’s percentage increased.153
Three interesting inferences are suggested by these statistics. The first is that putting aside the two most junior Justices (Sotomayor and Kagan), Justices Thomas and Ginsburg are the most disfavored for the Chief’s assignments of opinions in salient cases and Justices Alito and Breyer are relatively favored. Justices Alito and Breyer are both junior to Justices Thomas and Ginsburg, yet each received far more salient assignments than either Justice Thomas or Justice Ginsburg. That is evident both in terms of the percentage of salient assignments based on all of the Chief’s opinion assignments to each of those Justices and in terms of the percentage of opportunities that the Chief had to assign those Justices a salient case. On the former measure, Justices Alito and Breyer bested Justice Thomas by multiples of almost three and greater than two respectively, and they bested Justice Ginsburg by multiples of greater than five and three respectively.154 On the latter measure, Justice Alito and Justice Breyer both received salient opinion assignments approximately two-and-a-half times more frequently than Justice Thomas and three times more frequently than Justice Ginsburg.155
To be sure, Justices Sotomayor’s and Kagan’s numbers and rates of salient opinion assignments are similarly low. But that is less telling because they are also the most junior Justices, and on that basis can fairly be expected to receive fewer salient assignments than far more senior Justices like Thomas and Ginsburg, who have served on the Court for 25 and 22 years, respectively.156 It nonetheless may be significant that Justice Sotomayor is the only Justice to have received no salient opinion assignments from the Chief during her six Terms on the Court.157 Zero is inherently unique and in this particular context could be a bit portentous.
The second inference suggested is that Justice Scalia is not favored for salient opinion assignments notwithstanding both his seniority and his shared ideology with the Chief. Justice Alito is significantly junior to Justice Scalia, who has served on the Court twenty years longer than Justice Alito,158 yet the two Justices have received precisely the same number of salient opinion assignments — eleven. Their percentages of salient opinion assignments compared to non-salient assignments are essentially the same (15% for Justice Scalia and 16% for Justice Alito) and their percentages of salient assignments compared to assigning opportunities are also the same (15%). Especially given how much seniority plays a systematically important role within the Court — from the seating in the Courtroom to the order of voting at conference159 — this is a striking result. Scholars reviewing Chief Justice Rehnquist’s assignment practices similarly found no preference for Justice Scalia and a marked preference for assigning the important cases to Justices Byron White and Lewis Powell instead.160
There are many possible explanations for this discrepancy. The most obvious is that the Chief has greater confidence that Justice Alito will write the kind of opinion that the Chief prefers in the most important cases, either in substance or in style. The Chief, for instance, has expressed a general preference for narrower rather than broader rulings,161 while Justice Scalia has in his own opinions ridiculed the Chief for what Justice Scalia describes as “faux judicial restraint.”162 Justice Alito has also displayed a willingness, unlike Justice Scalia, to carve the more middle-ground, less absolute positions that the Chief favors.163 The Chief’s own writing style is closer to Alito’s than to Scalia’s, especially to the extent that the latter is well known for his barbed and frequently sarcastic wit.164
For that same reason, perhaps the Chief believes that Justice Alito is more likely to produce an opinion that can be more quickly joined by others, without the need for pushback by other Justices unhappy with some of Scalia’s rhetorical flourishes. For a Chief Justice, there can be great institutional value in such speedier and less contentious opinion production. As discussed further below,165 perhaps the Chief also believes that Justice Alito is less likely to lose the majority than either Justice Scalia or Justice Thomas in closely divided cases, which are more likely to be salient.
The third inference that can be drawn is that the Chief feels a heightened need to assign salient cases to Justice Kennedy. The Chief assigns cases to Justice Kennedy at a rate far higher than to anyone but himself, even though Justice Kennedy does not need the Chief to assign him salient cases to ensure that he receives such high-profile assignments: Justice Kennedy is the member of the Court who is most frequently the most senior Justice in the majority in salient cases in which the Chief is in dissent,166 and therefore Justice Kennedy, more than any other Associate Justice on the bench, can (and does) self-assign the writing of the opinions in those cases.167 The most likely explanation is that many of the salient cases in which the Chief and Justice Kennedy are together in the majority are closely divided cases in which Justice Kennedy is the “swing” vote.168 One of the easiest ways to reduce the risk of the swing Justice swinging the other way is to assign the opinion to that Justice, thereby ensuring that the opinion is one he or she will be willing to join, even if the Court’s holding may be far narrower as a result.169 In his assignments to Justice Kennedy, the Chief Justice appears to have embraced that tactic.
Finally, what do the statistics tell us about the Chief’s practice in assigning the less interesting cases on the Court’s docket? Are they distributed evenly, or do more junior Justices receive a disproportionately high number of such opinion assignments? Or, if a disparity does exist, do the statistics even more tellingly suggest that the Chief might have other reasons to assign more of these less interesting cases to some Justices rather than to others?
One possible marker of a less interesting case is a unanimous decision, although there are obvious, celebrated counterexamples (Brown v. Board of Education170 and United States v. Nixon,171 for example) in which the Justices strove for unanimity precisely because of, and to underscore, their ruling’s importance. Considering nonetheless just the unanimous cases, the most junior Justices, Sotomayor and Kagan, do receive a higher percentage of those assignments. During the past ten Terms, 41% of the Chief’s opinion assignments have been in unanimous cases.172 Both Justices Sotomayor’s and Kagan’s percentages are substantially higher than that average: 63% of Justice Sotomayor’s assignments from the Chief have been in unanimous cases, and 60% of Justice Kagan’s have been.173 Shared ideology also appears, however, to have played a role. 51% of Justice Ginsburg’s assignments have been in unanimous cases, while both Justices Breyer and Alito, who are both junior to Justice Ginsburg, are at 38%.174 Notably, Justice Thomas’s percentage at 49% is just shy of Justice Ginsburg’s, and substantially higher than Justice Breyer’s.175 The latter discrepancy might seem odd, except that the Chief has actually been more frequently in full agreement with Justice Breyer in recent Terms than he has been with Justice Thomas, casting doubts on popular assumptions about the reach of the Chief Justice and Justice Thomas’s shared ideology.176 The higher percentages of unanimous-opinion assignments for both Justice Thomas and Justice Ginsburg are also consistent with the earlier conclusion that they were disfavored Justices for salient assignments.
A more precise measure of the significantly less interesting cases on the Court’s docket filters the unanimous cases even further by isolating those that were not only unanimous, but also decided both very quickly and with relatively short opinions.177 This smaller subset of cases likely comes closer to capturing those that the current Chief once described as the “dogs” on the Court’s docket, while commenting “I can’t take all the good ones for myself, . . . I have to take my share of the dogs.”178
The Chief does in fact assign himself a fair share of the dogs. Just over 12% of all the cases that he assigns meet my statistical criteria for dogs, and 11% of his self-assignments are such cases.179 Justice Breyer has received more than his proportionate share of the dogs — thirteen cases, amounting to 21% of his assignments — followed by Justices Ginsburg (18%), Sotomayor (17%), and Thomas (15%).180 Consistent with the Chief’s heavier reliance on Justices Kennedy and Alito for the more salient cases, each had a much lighter share of the dogs (3% and 7%, respectively).181 Interestingly, Justice Scalia’s dog assignments have trended upwards over time,182 and Justices Thomas, Ginsburg, and Sotomayor have had distinct Terms during which they have received an especially high number of dog assignments. The Chief’s assigning Justice Ginsburg three dogs out of four total assignments from the Chief during October Term 2008 is the highest percentage for a single Term, and Justice Sotomayor’s receiving four dog assignments (out of eight total Chief assignments) during October Term 2013 is the highest absolute number of such assignments received by any Justice for one Term.183
Likewise revealing is the Chief’s practice of assigning opinions in the more closely divided cases.184 Although 19% of all the Chief’s case assignments occurred in closely divided cases, 34% of the Chief’s assignments to Justices Kennedy and Alito were in closely divided cases — far greater than for others, including the Chief himself at 25%.185 Those high percentages likely reflect the need to keep Justice Kennedy in the majority fold as well as the confidence that the Chief has in both Justice Kennedy’s and Justice Alito’s abilities to write an opinion for the Court that will maintain the tentative majority established by the initial conference vote.
Unlike some past Chiefs, however, Chief Justice Roberts has shown no disinclination to assign himself closely divided cases. Reportedly, some Chiefs have generally disfavored themselves for such assignments so that they could “remain at a distance from judicial divisiveness” and the related suggestion that they were displaying an absence of effective leadership.186 With 25% of his self-assignments being in closely divided cases, the current Chief has the third-highest percentage of all the Justices187 and therefore apparently harbors no such concerns about messaging. Alternatively, even if he harbors any such concerns, he may believe himself more qualified than others to walk the tightrope sometimes required to hold together such fragile majorities — perhaps because he views himself as the very Justice at the “margin” whom scholars have theorized should receive the assignment in order to maximize the likelihood of maintaining the fragile majority coalition established by the conference vote.188
No less revealingly, the closely divided case statistics show that when Chief Justice Roberts has the opportunity, he is counterintuitively more likely to assign closely divided cases to some of the Justices considered “liberals” than to some who are characterized as “conservatives.” Chief Justice Rehnquist engaged in the same practice.189
For instance, Chief Justice Roberts and Justice Ginsburg have been in the majority together in only thirteen closely divided cases, but the Chief has assigned Justice Ginsburg the majority opinion in four of those cases, or 31% of the total number of possible assignments.190 His comparable percentage for Justice Stevens was also 29% and for Justice Kagan was 40%.191 Those percentages are markedly higher than the frequency with which the Chief has assigned an opinion in a closely divided case to two “conservative” members of the Court, Justices Scalia and Thomas;192 when the Chief had the opportunity, he assigned Justices Scalia and Thomas opinions in closely divided cases only 20% and 15% of the time, respectively.193 The lowest percentage of the Chief’s closely divided assignments has been to Justice Sotomayor, who has received only one out of nine opportunities and out of thirty-five assignments overall.194 Justice Sotomayor’s low number of closely divided assignments is consistent with her receiving no salient assignments and a larger number of the unanimous and less interesting assignments.195
Regarding Justices Scalia and Thomas, here again, the Chief’s possible concern with their ability to hold on to a majority might explain their lower percentages.196 Other Chiefs have done the same; Justice Louis Brandeis may have received fewer opinion assignments in important cases not because of any plausible lack of ability, but rather based on the analogous concern that he was “a radical, ‘whose judicial craftsmanship would be unorthodox and unpredictable.’”197
The Chief’s relative reluctance to assign closely divided cases to Justice Scalia may have earlier origins and perhaps has dissipated over time. During the Chief’s very first Term on the Court, October Term 2005, the Chief assigned Justice Scalia the opinion for the Court in Rapanos v. United States,198 but Justice Kennedy ultimately declined to join Justice Scalia’s opinion and wrote separately199 — this split had the effect of denying Justice Scalia the vote necessary for an opinion of the Court, rendering Scalia’s a plurality opinion instead. Rapanos was a very significant environmental law case, and the lack of a majority ruling has caused much subsequent confusion in the lower courts.200 The reason for Justice Kennedy’s departure is also clear: Justice Scalia’s plurality was much further reaching in its precedential impact than Justice Kennedy’s opinion.201 What is striking is how the Chief shied away from assigning Justice Scalia any closely divided cases immediately afterwards. The next Term, October Term 2006, the Chief had fifteen opportunities to assign Justice Scalia an opinion for the Court in a closely divided case.202 He assigned him only one and that was in a case unanimous in all respects but one203 — despite Justice Scalia’s stature as the most senior Associate Justice in the majority. Justice Kennedy received four of those assignments204 and Justice Alito, a Justice far junior to Justice Scalia, received three.205 In later Terms, however, the Chief appeared less reluctant to assign closely divided cases to Justice Scalia, assigning him three such cases in October Term 2014.206
Another reason for the Chief’s tendency to assign closely divided cases to Justices with whom he votes less frequently could be to contradict the popular notion that the Justices cast their votes based merely on their own partisan political preferences rather than on the application of neutral legal principles.207 The Chief stressed in his opening statement during his Senate confirmation hearings that “[j]udges are not politicians”208 and has since echoed that theme in public speeches in describing how the Justices decide cases: “We are not Democrats and Republicans in how we go about it.”209 Accordingly, when a particular Justice votes in a manner that might surprise people because it seems contrary to what the public assumes are that Justice’s own political preferences, the Chief can highlight that publicly by assigning the opinion of the Court to that Justice. Studies have also shown that members of the public are more willing to agree with a Court opinion when an “ideologically congruent [J]ustice” writes the opinion, and therefore such assignments can promote public acceptance and mute controversy.210
Chief Justice Hughes reportedly assigned opinions to particular Justices for this same reason.211 So too did Chief Justice Warren, in assigning conservative Justice Tom Clark the Court’s opinion in liberal cases.212 The most famous example, however, is Chief Justice Stone’s decision to reassign a major civil rights ruling from Justice Frankfurter to Justice Stanley Reed after other members of the Court expressed concern about a pro–civil rights ruling being authored by a Justice from the Northeast rather than a Justice from the South.213 (Justice Thomas may have harbored analogous concerns in deciding last Term not to self-assign the Court’s opinion in Walker v. Texas Division, Sons of Confederate Veterans, Inc.,214 in which the Court rejected a First Amendment challenge to a state agency’s refusal to approve a motor-vehicle license plate design featuring a Confederate battle flag.215)
The judicial statistics suggest that Chief Justice Roberts has the same proclivity toward institutional messaging through opinion assignments. Not just in closely divided cases,216 but more broadly, the Chief regularly assigns opinions to “liberal” Justices in cases in which the public might consider the outcome “conservative” and to “conservative” Justices in cases in which the public might consider the outcome “liberal.” For example, Justice Stevens wrote the Court opinions upholding voter identification laws217 and rejecting altogether a claim for damages against Shell for hazardous waste contamination;218 Justice Souter authored the opinion reducing the plaintiffs’ right to recover punitive damages for the Exxon Valdez oil spill;219 Justice Ginsburg wrote the opinion overturning a lower court ruling in favor of environmentalists suing power plants for contributing to climate change;220 and Justice Breyer authored the opinion limiting a tobacco company’s liability for punitive damages to a smoker who died of lung cancer.221
On the other side of the ledger, the Chief Justice assigned himself the opinions upholding state campaign finance limitations on judicial candidates,222 rejecting prosecutors’ claim that police may search the digital information on a cell phone without a warrant,223 and, of course, preserving the viability of President Obama’s Affordable Care Act by allowing federal subsidies to extend to states with federal insurance exchanges;224 Justice Scalia wrote the opinions for the Court overturning a conviction based on the admission of evidence obtained from a GPS device without a warrant,225 and in favor of an employee’s claim of discrimination based on disparate treatment;226 and Justice Alito wrote the Court’s opinion in favor of a Muslim inmate’s right to grow a beard in accordance with his religious beliefs.227
Mark Twain notwithstanding,228 Professor, then Justice, Felix Frankfurter was plainly on to something. Judicial statistics do have a story to tell, including about the too often overlooked “administrative side” of a Chief Justice’s responsibilities. Chief Justice Roberts is no exception in this regard.
The judicial statistics demonstrate that during the past ten Terms, Chief Justice Roberts has achieved a significantly higher degree of numeric equality in opinion assignments than any of the sixteen Chiefs who preceded him. The Chief’s assignments also reflect his stated preference for judicial modesty. Unlike many past Chief Justices, the current Chief does not assign himself most of the cases or most of the highest-profile cases, nor does he display a reluctance to take on the closely divided cases that highlight the degree of division within the Court.
To be sure, the Chief’s assignments reflect his view that there are certain high-profile cases that warrant the extra symbolic value of being authored by the Chief Justice. He has assigned himself the salient cases more often than he has any other Justice. But, in that respect, his self-assignments are consistent with the Court’s tradition, and the public’s expectation about the responsibility of the Chief to take ownership of such cases.229
The Chief’s assignments, however, are not merely a product of a desire for numeric parity or an expression of judicial modesty. In the assignment of both the salient, higher-profile cases and the closely divided cases, the Chief’s assignments favor Justices Kennedy and Alito and disfavor Justice Ginsburg some and Justice Sotomayor more so. Justices Kennedy and Alito’s shared ideology with the Chief explains this favoritism in part, but not completely. The Chief also disfavors Justice Thomas, does not favor Justice Scalia, and assigns in a manner that relatively favors Justice Breyer and shows an increasing potential to favor Justice Kagan. In these respects, the Chief seems highly motivated to make assignments to those in the majority who he believes can write more narrowly and are better able to maintain (and not lose) the majority established at conference with less rather than more hassle, which is why he likely disfavors assignments of higher-profile and closely divided cases on a relative basis to other conservative Justices. The Chief is also likely constrained by his heightened need to ensure that Justice Kennedy does not wander from the majority view established at conference, which places a special premium on assignments to Justice Kennedy.
Finally, just as some commentators have contended that the Chief’s votes in certain highly contentious cases reflect his strong commitment to maintaining the Court’s institutional stature and a nonpartisan view of judging,230 his opinion assignments promote that same objective. It is evident in the Chief’s self-assignment of certain high-profile opinions in which the ruling he is authoring departs sharply from the policy agenda of the political party whose President championed his nomination. And the same is true in the Chief’s assignments of cases to other Justices, in which he regularly seeks to assign opinions with seemingly conservative results to Justices considered “liberal,” and vice versa.
Today, as in Justice Frankfurter’s time, a Chief Justice’s “administrative side” offers an important story for the Harvard Law Review to tell (at least online), especially with regard to the Chief’s exercise of opinion assignment authority. The current Chief’s exercise of that authority during the past ten Terms tells us a lot about him: his commitment to numeric equality combined with his quieter but no less significant attention to strategic factors that advance his preferred legal rulings, maintain fragile coalitions, and promote the image of the Court as a nonpartisan decisionmaker. Striking such a balance requires, as Justice Frankfurter also made clear, “the most delicate judgment.”231
* Howard J. & Katherine W. Aibel Professor of Law, Harvard Law School. I would like to thank my colleague Mark Tushnet for commenting on an earlier draft of this article; Dr. Arevik Avedian, Applied Research Statistician, of the Harvard Law School Law Library for her invaluable assistance in creating the database upon which the statistical tables in this Article are based, and determining their relative statistical significance; Robert Niles, Harvard Law School and Harvard Business School Class of 2016, for his skillful assistance in preparing this Article, especially in working with me to produce the statistical tables from that initial database and reviewing repeated drafts; and my assistant, Matt Rose, for his terrific editorial assistance. Finally, I would like to express my appreciation to a platoon of my Class of 2017 Torts students who, with little notice and on a very short time frame, calculated the number of slip opinion pages in all the cases decided during the past ten Terms as needed to assist in my identification of the “dogs” of the docket. See infra note 177 and accompanying text; Tables 15 & 16, infra.