Strategy and Constraints on Supreme Court Opinion Assignment

Abstract

The assignment of the Supreme Court's majority opinions is one of the principal prerogatives enjoyed by the chief justice. A strategic chief justice is able to influence the course of legal policy through agenda-setting; that is, the chief justice exercises influence over policy by choosing the justice who will author an opinion and, thereby, determining which policy alternative will be developed in a majority opinion draft. Through strategic opinion assignment, then, the chief is able to guide the Court to an outcome that is closest to his preference or that will result in the least policy loss. Despite the importance of this prerogative for agenda-setting and the development of the law, the chief justice operates within constraints: the need for majority support for the proposed opinion and the efficient operation of the Court. In particular, the chief justice often assigns opinions to justices with whom he allies in order to maintain fragile conference majorities. Chief Justice Rehnquist also asserted that his assignments were based on the need to complete work on the cases and to maintain an equitable distribution of cases across the justices. Using data drawn from the papers of Justice Harry A. Blackmun, I test these expectations through an examination of opinion assignment during the Rehnquist Court (1986-1993 OT).