The Chief Justices and Self-Assignment of Majority Opinions: a Research Note

T HE IMPORTANCE of the phenomenon of judicial opinion assignment has often been alluded to by jurists and public law scholars, yet opinion assignment decisions have only rarely been subjected to empirical investigation.' Nevertheless, it is in the majority opinions of the Supreme Court where controlling constitutional principles are established and broader directives beyond the immediate case are often fashioned. answer to the question of, Who speaks for the Court? has myriad implications beyond the most obvious issue of what is the status of a lower court decision. the Court's opinion be placed on one ground rather than another, or upon two grounds instead of one? Should the opinion deal narrowly with the issues, disposing of the case and doing no more? Or should it survey the issues with depth and breadth implanting seed from which new constitutional and legal doctrine can grow?2 In assigning majority opinions in all cases in which he votes with the majority, the Chief is in a unique position to affect the content of the opinions that emerge by choosing the Court's spokesman. Beyond the Chiefs ability to structure the opportunities of his colleagues, however, his potential for self-assignment of cases augments his power even further. exercise of this potential power for self-assignment is, in fact, encouraged by the Chiefs colleagues because of the symbolic nature of the Chieftainship. Thus, as John H. Clarke put it a few years after his retirement, The great cases are written, as they should be, by the Chief Justice.3 Similarly, Felix Frankfurter asserted more recently that the Chief must recognize '... the importance of the Chief Justiceship as a symbol. For there are occasions when an opinion should carry the extra weight which pronouncement by the Chief gives.4 Chief Justice's opinion assignment prerogative and the potential for selfassignment of desirable cases fit squarely in the theoretical framework of a policy oriented Justice as described by Walter Murphy. By this term I mean a who is aware of the impact which judicial decisions can have on public policy, realizes the leeway for discretion which his office permits, and is willing to take advantage of this power and leeway to further particular aims.5 Clearly, an