Opinions, Assignment and Writing Of

Opinions, Assignment and Writing Of Opinions announce the decision(s) reached by the Supreme Court and explain the reasons for those results. Initially the Court prepared seriatim opinions in which each member of the Court wrote a separate opinion. The result was that the Court spoke with multiple voices, none the controlling one.

When John Marshall became chief justice in 1801, the Court began to render a single opinion that announced its decision. Although the practice was not immediate, it became standard by the end of Marshall's tenure on the Court in 1835. When the chief justice is in the majority he can assign the opinion to himself or assign the task of writing to another member of the majority. When the chief justice is not in the majority, the assignment of opinions is done by the most senior associate justice in the majority. Numerous considerations influence the choice of opinion writers.

The first consideration of the assigner may be to distribute the work of opinion preparation among all the justices evenly. With minor variations, from term to term, the distribution of opinions does reflect a fairly even amount of work. The exceptions are when a justice has not served for the entire term or has been ill. Unavailability is the most likely reason for a lack of equitable distribution.

Another factor that the assigner might consider is whether the decision is an important one or is one that will be significant in the future. In such cases, the assigner may assign himself, as Chief Justice Earl Warren did in Brown v. Board of Education (1954) and Reynolds v. Sims (1964) and Chief Justice Warren E. Burger did in U.S. v. Nixon (1974). Short of that, the assigner may select a colleague who shares the assigner's views on the subject and who will prepare an opinion that reflects those views.

An additional set of tactical calculations may enter the assigner's mind in selecting the opinion writer. The writing of any opinion usually requires some adjustment of views and wording on the part of the writer. If the majority is small, the preparation of the opinion can be crucial to holding the majority together or attracting a justice who initially voted the other way. Since votes in cases are subject to change, the opinion can be designed to get a dissenting justice to switch his or her vote and join the majority. Thus, the ideological position of the writer within the majority block becomes significant. The assigning justice may give the task of writing the opinion to a justice whose vote is not secure. Once assigned the majority opinion, the wavering justice obtains a permanent stake in seeing that position prevail and is thus less likely to switch sides and change the result.

The negotiating abilities of the opinion writer may also influence the assigner's choice, particularly if the majority is fragile and will require careful persuasion or negotiation to hold or build the majority. Cementing the majority coalition or building it by attracting a vote can be important in selecting the opinion writer.

The writing of the opinion may be done by the individual justice or by a law *clerk. When the justice is satisfied with the opinion, it is distributed to the other eight members of the Court. This means each of the other justices has the opportunity to join that opinion. Justices can withhold joining until the writer has modified the opinion slightly or drastically. When the writer has heard from all the justices who are willing to join the majority opinion, and any concurring and dissenting opinions have been prepared, the decision is ready to announce.

Particularly in controversial or complicated cases, where there is a good deal of disagreement among the justices, the preparation of the Court's majority opinion may take months. Often, those cases are announced in the last days of the Court's term, in late June or early July. When there is no more time for negotiating and the term is ending, there is pressure to complete the opinions.

Bibliography

Alexander Bickel , The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work (1957).

William P. McLauchlan