Should The Chief Justice Always Decide Who Writes An Opinion?Posted: October 10, 2014
A 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.)