William_T._Bianco,_David_T._Canon]_American_Polit

Hearing cases before the Supreme Court 513

law when he was in private practice. This experience played a role in Chief Justice

Burger’s decision to assign Blackmun the majority opinion in the landmark abortion

decision Roe v. Wade (1973). Likewise, Justice Sandra Day O’Connor developed expertise

in racial redistricting cases and authored most of those decisions in the 1990s, while

Justice Samuel Alito has specialized in criminal justice cases in recent years.^54

Strategy on the Court Other factors in how opinions are assigned are more

strategic, taking into account the Court’s external relations, internal relations, and the

personal policy goals of the opinion assigner. The Court must be sensitive to how others

might respond to its decisions because it must rely on the other branches of government

to enforce them. One famous example of this consideration in an opinion assignment

came in a case from the 1940s that struck down a practice that had prevented African

Americans from voting in Democratic primaries.^55 Originally, the opinion was assigned

to Justice Felix Frankfurter, but Justice Robert Jackson wrote a memo suggesting that

it might be unwise to have a liberal, politically independent Jew from the Northeast

write an opinion that was sure to be controversial in the South. Chief Justice Harlan

Fiske Stone agreed and reassigned the opinion to Justice Stanley Reed, a Protestant

and Democrat from Kentucky.^56 It may not seem that the Court is sensitive to public

opinion, but these kinds of considerations happen fairly frequently in important cases.

Internal considerations occasionally cause justices to vote strategically—differently

from their sincere preferences—so they can put themselves in the majority. If they are

the most senior justice in the majority, they then have the power to assign the opinion,

and they often assign it to themselves.

Justices may also assign opinions to further their own personal policy goals.

The most obvious strategy is for the chief justice to assign opinions to justices who

are closest to his or her position. This practice is constrained by the chief justice’s

responsibility to ensure the smooth operation of the Court. If the chief justice assigned

all the opinions to the justices who are closest to him or her ideologically, then justices

with other ideological leanings would get a chance to write opinions only in the 15 to 20

percent of cases in which the chief is in the minority. However, Chief Justice Roberts

has allocated the most important cases to his ideological allies and has taken about

twice as many of the most important cases for himself (compared to what would

have been expected by chance).^57 Charles Hughes, chief justice from 1930 to 1941,

sometimes assigned opinions on liberal decisions to conservative justices and cases

with conservative outcomes to liberal justices in order to downplay the importance

of ideology on the Court.^58

After the opinions are assigned, the justices work on writing a draft opinion.

Law clerks typically help with this process. Some justices insist on writing all of

their opinions, whereas others allow a clerk to write the first draft. The drafts are

circulated to the other justices for comments and reactions. Some bargaining may

occur, in which a justice says he or she will withdraw support unless a provision of

the opinion is changed. Justices may join the majority opinion, may write a separate

concurring opinion, or may dissent (see Nuts & Bolts 14.3 for details on the types

of opinions).

Dissents Two final points about the process of writing and issuing opinions are

important. First, until 1940, there was a premium placed on unanimous decisions. John

Marshall, who was chief justice from 1800 to 1835, started this practice. Through the

1930s, about 80 to 90 percent of decisions were unanimous. This changed dramatically

in the 1940s, when most cases had at least one dissent. In recent decades, about two-

thirds of cases have had a dissent.^59 However, in the 2013–2014 term two-thirds of the

cases were unanimous, the highest proportion since at least 1946. That proportion fell

So that’s the dissenter’s hope:

that they are writing not for

today but for tomorrow.

—Justice Ruth Bader Ginsburg

Chief Justice John Roberts (right)

stands with Associate Justices Elena

Kagan and Stephen Breyer as they

await the arrival of President Trump

before his State of the Union address.

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