Should The Chief Justice Always Decide Who Writes An Opinion?
Posted: October 10, 2014 Filed under: Appellate Law 5 CommentsA colleague recently lent me his copy of the new biography of Justice Scalia, “A Court of One.” It’s an enjoyable read. Last night I was reading a chapter that discussed how opinions are assigned to particular justices for drafting after oral argument. The power to assign an opinion to a particular justice is quite significant. Even when the opinion of the court is unanimous, the assignment of drafting responsibility to a particular justice can have a great impact on the scope of the ultimate decision. Some justices are known for narrow decisions, others write much more broadly. Each justice speaks with a unique “voice.” Moreover, the non-writing justices tend to be fairly deferential to the authoring justice in any given case because the non-writing justices want similar deference when they are drafting opinions for the court.
The longstanding tradition in the United States Supreme Court is that the Chief Justice assigns the opinion only if he (one day she) is in the majority. If the Chief Justice is not in the majority, the most senior justice in the majority assigns the opinion. By contrast, the longstanding tradition in the Connecticut Supreme Court is quite different. The Chief Justice always assigns the opinion, regardless of whether he or she is in the majority.
I have long wondered whether such concentration of opinion-assignment power in the Chief Justice of our state Supreme Court is a good thing. (This is not a comment on the present Chief Justice; I have been thinking about this issue since I clerked on the Supreme Court in 1990-91.) I’m curious if anyone has any thoughts on this particular issue. What say you Wes Horton? Dan Krisch? Gideon? Linda Morkan? Jeff Babbin? Proloy Das? Justice (ret.) McLachlan? (I apologize for not naming every noted appellate advocate or retired jurist in the state. Please feel free to chime in anyway.)
Appealingly Brief! 
Interesting question. Two thoughts:
(1) Functionally, this matters much less often in the CT Supreme Court than the U.S. Supreme Court because dissents are so infrequent. C.J. Rogers, for example, has dissented, or joined in a dissent less than a dozen times since 2010. I don’t know for sure, but I suspect — other than C.J. McDonald — the other Chiefs from Peters forward also have dissented very rarely. Of that very small number of cases in which a Chief dissents, how often could the choice of majority author allow the Chief to influence the opinion?
(2) Like all power, it is neither inherently good or evil; it depends on how it’s used. C.J. Rogers, in my view, makes laudable use of her assignment power — e.g., as I noted in my Law Trib Year in Review, she took on most of the lightning rod/controversial cases over the past year. On one occasion in the past, another C.J., in my view, made bad use of the power to force authorship of a controversial criminal opinion on the Justice most likely to be harshly criticized by the public and legislature.
Dan
Thanks Dan. The case you reference in which a past C.J. used the assignment power to have another justice (Katz) write a controversial death penalty opinion is exactly the kind of case that makes me wonder about this issue.
A fair point. But I think that it’s such a rare exception that it proves that the general rule is okay. It’s been 14 years and I can’t think of another instance of the misuse of assignment power.
Do either of you know their rules for granting cert?
It requires 3 votes.