Chief Justice Roberts made certain that each justice had almost exactly the same number of majority opinions. His record on this score, Professor Lazarus found, is “unmatched by any prior chief justice.”
But not every opinion is equally desirable. Deciding which cases are most important involves an element of judgment, though close observers of the court’s work will agree on them most of the time. Professor Lazarus relied on charts published each term in The New York Times to identify 85 major cases.
That set of decisions tells a fascinating story about the Roberts court. The chief justice assigned about a third of the big opinions to himself and another third to Justice Anthony M. Kennedy.
The assignments to Justice Kennedy have a distinct purpose, Professor Lazarus wrote: to lock in his vote in close cases.
“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,” Professor Lazarus wrote.
After Justice Kennedy, Justice Samuel A. Alito Jr. was next in his share of big cases, with 16 percent. Justice Sonia Sotomayor was alone in getting no majority opinions in major cases.
The study’s most surprising finding concerned Justice Alito, the junior member of the court’s conservative wing, and Justice Antonin Scalia, its senior member.
Justice Scalia joined the court in 1986 and is its longest-serving current member. But he received about the same percentage of assignments in big cases as Justice Alito, who did not arrive until 2006. “Especially given how much seniority plays a systemically important role within the court,” Professor Lazarus wrote, “this is a striking result.”
Justice Alito is apt to write opinions of the sort Chief Justice Roberts prefers, Professor Lazarus wrote: incremental, without rhetorical flourishes, and able to command five votes.
So who will write the Luis case being argued this morning by Howard Srebnick? More on that later.