The estimable Adam Liptak, the New York Times’ Supreme Court reporter, laid out today a particular reason why this election is so important for the Court. And in the process, he told me something I did not know about how the Court operates: how cases are assigned.
I’d always assumed the Chief Justice, currently John Roberts, a conservative, assigned cases for written decisions.
Not necessarily so:
Were a liberal to replace Justice Scalia — whether it was President Obama’s pick, Judge Merrick B. Garland, or someone named by Hillary Clinton should she win the presidency — a majority of the justices would be Democratic appointees for the first time in almost 50 years.
OK, we all know this. We also know how crucial it is to our lives and the lives of the next generation to have Hillary Clinton choose (or support the President’s choice of Merrick Garland) the justice to fill Scalia’s seat. A few measly phrases I just flicked off my cuff as a reminder: Roe and women’s health, Citizens United, the Voting Rights Act, the Affordable Care Act, the Clean Air Act…
But here is something I did not know:
As a practical matter, a chief justice in perpetual dissent [Roberts, if he is reduced to minority status in a court with a liberal filling Scalia’s seat] would give up a crucial tool: assignment power. When the chief justice is in the majority, he gets to choose who will write the majority opinion. Much can turn on that choice.
Chief Justice Roberts has used his power vigorously and strategically. He has kept major opinions for himself, partly to shape and hone them and partly because it seems fitting for the chief justice to speak for the court in big cases. He has assigned other important majority opinions to trusted allies, notably Justice Samuel A. Alito Jr.
So if, after the election, Roberts is in the minority, who does get to assign the majority opinion? Hang on to this, because it’s a beauty. In fact, it’s so beautiful I am going to bold it:
If the chief justice is in the minority, the assignment power shifts to the senior justice in the majority, meaning the one with the longest tenure. That role would fall to Justice Ruth Bader Ginsburg on a court with five Democratic appointees in cases where justices split along ideological lines.
“We may have, de facto, the first female chief justice,” said Akhil Reed Amar, a law professor at Yale.
Do lavish your attention on the entire article. (The Notorious RBG, de facto Chief Justice of the Supreme Court of the United States of America.)