Wisconsin Lawyer: As I See It: Should the Supreme Court Change How It Assigns Opinions?:

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    May
    01
    2020

    As I See It: Should the Supreme Court Change How It Assigns Opinions?

    Compared to the current random approach in assigning opinion writing, requiring the senior most justice in the majority to assign an opinion (and reassign if necessary) can enhance the clarity of the law.

    Prof. Ryan J. Owens

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    The Wisconsin Supreme Court should change its opinion assignment process. Currently it uses a randomized opinion assignment process that reduces collegiality and decreases the quality of judicial opinions. It should consider empowering the chief justice, when in the majority, to assign the court’s majority opinion (or the senior most justice in the majority when the chief is in dissent). Decades of scholarship show that such an assignment process gives incentives to justices to build consensus and simultaneously allows them to take advantage of their unique expertise. In today’s polarized and uncompromising environment, all institutions could use a boost of collegiality. And if that boost also leads to greater efficiency and work product? All the better.

    The Court’s Current Opinion Assignment Process

    According to the court’s internal rules, at 8:45 a.m. the morning of oral argument, the justices hold a pre-argument conference in which one justice, chosen randomly to do so, begins discussion of the day’s cases. The justice frames the legal issues of the case for her colleagues and points out any procedural irregularities in the case that others should know. The purpose of this practice is to make sure all the justices are familiar with the facts and arguments of the case before oral argument begins. Then, at 9:45 a.m., the justices begin hearing oral arguments, either in person or remotely. During oral arguments, they press attorneys from both sides on the law and the logical implications of their arguments. Along the way, the justices also float trial balloon arguments of their own to see how their colleagues respond.

    Ryan J. Owenscom professor.ryan.owens gmail Ryan J. Owens, U.W. 2001, is the George C. and Carmella P. Edwards Professor of American Politics and the Director of the Tommy G. Thompson Center on Public Leadership at U.W.-Madison. He is an affiliate faculty of the U.W. Law School and the La Follette School of Public Affairs. His research focuses on American political institutions, with a particular focus on the courts. This article was written and accepted for publication before the April 7, 2020 election.

    At the end of each oral argument day, the justices hold a conference in which they discuss the day’s cases. The justice who led off the day’s pre-argument conference leads off the post-argument conference.1 She explains her views of the case and then casts her vote. The remaining justices (presumably in order of seniority) then state their views and cast their votes. After all the justices have stated their views – and cast their votes – a conference majority will have formed.

    It is here that Wisconsin’s opinion assignment process deserves reconsideration. For at this point, justices use a chance-based process to determine who will write the court’s majority opinion.

    More specifically, each of the seven justices receives a number from one to seven. Each justice’s unique number appears on the backside of a token. The chief justice collects the seven tokens and lays them upside down (so as not to reveal their numbers underneath) on the conference table. The senior associate justice then selects one of the tokens. The justice whose token the senior associate justice draws is selected to write the majority opinion.2 If the senior associate justice selects the token of a justice who happens to be in the minority coalition, she draws again. The drawing continues until the senior associate justice selects the token of a justice in the majority.

    Why would a court use such a process? Supporters offer a few justifications. For starters, randomization theoretically prevents a chief justice from engaging in bad faith – assigning plum opinions to favored justices and punishing disfavored justices with opinions in tougher or less interesting cases. There is at least some anecdotal evidence that some chief justices have used this strategy. U.S. Supreme Court Justice Blackmun once told listeners: “If one’s in the doghouse with [Chief Justice Burger], he gets the crud” cases.3 Likewise, Justice Powell stated that because he had opposed Chief Justice Burger, he was “resigned to writing nothing but Indian affairs cases for the rest of [his] life.”4

    For similar reasons, some have argued that randomization might actually generate collegiality on the courts. For example, a 1977 survey asked state supreme court justices across the country about their views regarding discretionary versus automatic (that is, randomized) opinion assignment. Many justices believed that automatic assignments lead to “harmonious social relationships.”5

    The chief justice’s workload considerations also might theoretically counsel toward opinion randomization. As discussed below, chief justices often assign opinions equitably to ensure that all justices receive their fair share. Making such proper assignments requires time. It requires the chief justice regularly to run down the list of cases, determine who is writing what, and plug the holes. All this takes time. And time is a precious commodity for the chief justice, who is the administrative head of the judicial system in Wisconsin and, as such, incurs considerable burdens on her time. Randomization removes a responsibility from her queue.

    The question remains, however: does randomization actually lead to benefits? Does it enhance collegiality? Does it lead to higher quality opinions? The data say no.

    A Chief Justice-Centered Opinion Assignment Process Can Succeed When the Randomized Process Fails

    Despite the theoretical benefits of randomization, decades of social science research on state supreme courts suggests that randomizing the opinion assignment process actually leads to negative outcomes. More specifically, it generates less judicial consensus and prevents justices from taking advantage of their unique experiences and skills when they write their courts’ opinions.

    The randomized opinion assignment process can cannibalize consensus and collegiality. One study finds that states with randomized opinion assignment “have almost 14% more cases with dissent annually than states utilizing discretionary [chief-centered] opinion assignment procedures.”6 Another study finds that “opinion procedures that allow the chief justice to impose sanction [in the form of later opinion assignments] increase the size of the majority by 7 percent.”7 A chief justice-centered form of opinion assignment can reduce dissent even in states, like Wisconsin, that use judicial elections. A 2016 study of dissent rates in every state court of last resort from 1995 to 2004 shows that “[i]n courts with contestable elections, chief assignment [versus an automatic assignment] is associated with a 15-percentage-point decline in dissent rates (from 27.7% to 16.6%...)”8 Randomization, in short, is friendly fire that can kill or maim judicial consensus.

    The logic behind these findings is intuitive. When the chief justice (or other opinion assignor) cannot “punish” bad behavior through the opinion assignment process, there is less incentive for justices to build consensus and act collegially. “[W]henever opinion assignment is subject to the luck of the draw, joining a winning coalition on one decision will not result in any tangible reward on later decisions, such as being assigned an opinion in one’s area of substantive expertise….”9 That is, when a justice knows she can fire off a harsh dissent today, without reducing her probability of receiving an opinion assignment tomorrow, she has less incentive to cooperate today.

    Empowering the chief justice to assign majority opinions also allows the court to take advantage of the unique experiences and expertise of the justices who serve and, thereby, to craft higher quality opinions. Some cases are more complicated than others, and in those cases it is useful to have an expert take on the challenge of writing the opinion. Justices overall tend to be generalists when they arrive at the court. But some justices come to the court having focused in certain areas. It often makes sense to assign opinions to those justices to generate a higher quality work product.

    There is considerable evidence that chief justices with opinion assignment powers do indeed take advantage of their colleagues’ issue expertise. Looking at the U.S. Supreme Court, one study discovered that justices with expertise on an issue were 7.8 percent more likely to receive the opinion assignment than a nonexpert.10 Justice Scalia often received the Court's telecommunications opinions because he once was general counsel in the Office of Telecommunications Policy in the Nixon White House. Other courts likewise have devised their opinion assignment process to take advantage of justices’ expertise. Of course, doing so also has the indirect benefit of helping the court to finalize its opinions sooner, as experts can cut to the critical issues faster than nonexperts. Simply put, assigning opinions to experts can generate higher quality opinions.

    What is more, by ensuring that so-called majority opinions actually command a majority of justices, a chief justice-centered assignment process would benefit lower court judges and attorneys who must interpret supreme court precedents. The current practice of opinion assignment allows for situations in which the “lead” opinion, assigned by randomization, does not command as much support as a concurring opinion. That is, once the court assigns the opinion to a justice, there is no way to reassign it if justices’ votes (or their rationales) change. For example, in Anderson v. Aul, then-Chief Justice Abrahamson drew the token in the majority and therefore wrote the “lead” opinion.11 The concurrence by Justice Ziegler, however, actually commanded a majority but was nevertheless confusingly listed as a concurrence. As the court of appeals bemoaned in State v. Hawley, lower courts often find it difficult to determine which opinion carries the most binding effect.12 Requiring the senior most justice in the majority (usually the chief) to assign an opinion (and reassign if needs be) can enhance the clarity of the law.13

    It is also worth pointing out that empowering chiefs to assign opinions allows them to meet leadership expectations – and this may outweigh the time demands associated with assigning opinions appropriately. Many Americans desire chief justices who can exercise task and social leadership.13 Task leaders ensure the smooth functioning of the court by their knowledge of precedent and practice. Social leaders understand the personalities on their courts, how to inspire their colleagues, and how to ensure that judicial business remains collegial. Perhaps not surprisingly, the best chief justices have been task and social leaders. Rightly or wrongly, Americans expect chief justices to maintain collegiality on “their” courts. Granting them the authority to assign opinions can help them be more effective social leaders.

    It seems logical, therefore, for the Wisconsin Supreme Court to at least consider revising its practice to allow the chief justice to assign authorship of the court’s majority opinions when she is in the majority, and when she is not, allow the senior most justice in the majority to do so. The change would be relatively easy for the court to make. The court’s own procedures note that “any internal operating procedure may be suspended or modified by majority vote of a quorum of the court.”14

    One question remains: Could chief justices take advantage of the power to assign cases? Surely. I provided some examples above – and the justices would want to police themselves internally to prevent norm violations and maintain good faith. But the systematic evidence suggests a different story.15 If ever there was a court that might operate strategically, it would be the U.S. Supreme Court. Yet the best evidence suggests that Chief Justices are fair. Chief Justice Rehnquist assigned opinions so as to achieve equity in each sitting.16 One study found that a justice with no other opinion assignments had a 10.7 percent chance of being assigned an opinion by Rehnquist, while a justice who already received an opinion from another assignor had a 6 percent chance of being assigned the case, even after controlling for things like ideological congruence with the assignor. Chief Justice Roberts is just as equitable. Even at the U.S. Supreme Court, with a hyper-charged docket touching on our nation’s most bitterly divided issues, the Chief Justice systematically assigns cases fairly. And if institutional considerations outweigh ideological considerations at that Court, one would expect them to hold up at the Wisconsin Supreme Court as well.

    Conclusion

    The data show that empowering the chief justice to assign the court’s opinions (when the chief is in the majority) can lead to greater consensus and can improve the overall quality of courts’ opinions. These two features are important for courts of last resort as they contribute to the rule of law. Wisconsin Supreme Court justices should consider a change to the court’s opinion assignment process to take advantage of these positive findings. Perhaps after seeing the data on the matter, four or more will be so inclined.

    Meet Our Contributors

    If you could meet any past U.S. Supreme Court justice, who would it be and why?

    Ryan J. OwensI would love to meet Chief Justice John Marshall. He was a brilliant and gregarious leader. People loved his laugh. He was down to earth and could talk with anyone. He could make friends with even his bitterest political rivals. And, he was able to pull the Court together at an important time in its history. The judiciary would look completely different today without John Marshall at the helm early on.

    I would also like to meet Chief Justice William Howard Taft. Taft was responsible for modernizing the federal judiciary. Before his assent to the bench, the federal courts lacked coordination. Taft helped create the judicial conference and other tools to improve the courts. He was able to persuade Congress to grant the Court greater independence and to provide funding for the Supreme Court’s own building. He believed in a strong and independent judiciary and was able to protect and grow the courts.

    com professor.ryan.owens gmail Ryan J. Owens, University of Wisconsin, Madison.

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    Endnotes

    1 See Wisconsin Supreme Court Internal Operating Procedures § III(F).

    2 See Wisconsin Supreme Court Internal Operating Procedures § III(F).

    3 See Nancy Staudt, Lee Epstein & Peter Wiedenbeck, The Ideological Component of Judging in the Taxation Context, 84 Wash. Univ. L. Rev. 1797, 1799 (2006).

    4 See Michael W. Schwartz, Our Fractured Supreme Court, 147 Policy Rev. 3 (2008).

    5 See Elliot E. Slotnick, Who Speaks for the Court – The View from the States, 26 Emory L.J. 107, 135 (1977).

    6 See Paul Brace & Melinda Gann Hall, Neo-Institutionalism and Dissent in State Supreme Courts, 51 Journal of Politics 54-70, 65 (1990).

    7 See Brent D. Boyea & Victoria A. Farrar-Myers, Leadership and Election Litigation in State Supreme Courts, 41 State and Local Government Rev. 17, 27 (2011).

    8 See Matthew E.K. Hall & Jason Harold Windett, Discouraging Dissent: The Chief Judge’s Influence in State Supreme Courts, 44 American Politics Research 682, 699 (2016).

    9 See Melinda Gann Hall & Paul Brace, Order in the Courts: A Neo Institutional Approach to Judicial Consensus. 42 Western Political Quarterly 391, 397 (1989).

    10 See Forrest Maltzman & Paul J. Wahlbeck, A Conditional Model of Opinion Assignment on the Supreme Court, 57 Political Research Q. 551, 558 (2004).

    11 See Anderson v. Aul, 2015 WI 19, 361 Wis. 2d 63, 862 N.W.2d 304.

    12 State v. Hawley, No. 2015AP1113-CR, 2018 WL 8221526 (Wis. Ct. App. Nov. 21, 2018)(unpublished).

    13 See Daniel R. Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969, 992 (2017); accord Joseph D. Kearney, The Wisconsin Supreme Court, Can We Help?, 2015 Marq. Law. 48, 49 (2015).

    14 See David J. Danelski, The Influence of the Chief Justice in the Decisional Process of the Supreme Court in American Court Systems: Readings in Judicial Process and Behavior (W.H. Freeman, 1960).

    15 See Wisconsin Supreme Court Internal Operating Procedures § III(F).

    16 One study finds that Associate Justices are more likely to elevate median justices rather than ideological outliers to be Chief when the Chief has assignment powers. When the Chief lacks the opinion assignment power, those outliers are more likely to become Chief. See Laura Langer, Jody McMullen, Nicholas P. Ray, & Daniel D. Stratton, Recruitment of Chief Justices on State Supreme Courts: A Choice Between Institutional and Personal Goals. 65 Journal of Politics 655, 668 (2003).

    17 See Paul J. Wahlbeck, Strategy and Constraints on Supreme Court Opinion Assignment, 154 U. Pa. L. Rev. 1729 (2006).




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