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The Supreme Court at Work: “Sword Dancing,” Opinion Assignment and Writing

 

The U.S. Supreme Court writes opinions to explain and justify to the American people the decisions it reaches in cases it hears and resolves in conference. The explanation of the Court’s interpretations of statutes, constitutional provisions, precedents and, ultimately, its results, is critical to the partnership between the judiciary and the citizenry, one that hinges on the public’s trust in the Court’s rationales and exercise of awesome power over the life of the nation. In a constitutional democracy grounded in reason and persuasion, the High Bench has an obligation to satisfactorily explain its decisions to avoid charges of arbitrariness. 

 

        Chief Justice Hughes observed that “there is no better precaution against judicial mistakes than the setting out accurately and adequately of the material facts as well as the points to be decided.” He added that all who have written judicial opinions know, writing sharpens thinking and occasionally exposes weaknesses and flaws in an argument that was ill conceived. “As judges say, some opinions just won’t write.”

 

      As usual, Justice Oliver Wendell Holmes put a fine point on the pressure of writing the Court’s opinion, a process made difficult by the fact that it represents a collective decision.  It requires that a “judge can dance the sword dance; that he can justify an obvious result without stepping on either blade of opposing fallacies.” Justice Harry Blackmun expressed the motivations for reaching compromise with colleagues in writing opinions. Opinions often require revision, he said, “because other justices say, if you put in this kind of paragraph or say this, I’ll join your opinion. So you put it in. And many times, the final result is a compromise.  I think the public doesn’t always appreciate this but many times the result is not what the author would originally have liked to have. But five votes are the answer and that’s what the coached judgment is. So you swallow your pride and go along with it if you can.”

 

  The workload of the Court is pretty evenly divided, by virtue of the long tradition, dating back to the days of Chief Justice John Marshall, of assigning opinions. When Marshall was appointed Chief Justice in 1801, he instituted the practice of assigning a justice to write the Court’s institutional opinion, a practice that broke with the Court’s early approach, that of each justice writing an opinion. Under Marshall, if the Chief voted with the majority, he wrote the opinion or assigned the opinion to a colleague. If the Chief did not side with the majority, then the justice with the most seniority who was with the majority, either wrote the opinion or assigns it to someone else. As it happened, Marshall, at least in his first four years (1801-1805), wrote all but two of the Court’s opinions, likely because his colleagues were lethargic or, some might say, browbeaten. To the end of his career, Marshall wrote the great majority of the opinions. Chief Justice Hughes kept the “plums” for himself. He wrote on average, 21 opinions each year, while his colleagues wrote 16 each. By contrast, Chief Justice Earl Warren, assigned 80 percent of all the Court’s opinions during his 16-year career.

 

Various factors are at play in the assignment of opinions.  The Chief Justice, for example, may contemplate a “public relations” strategy, particularly in cases that undoubtedly are going to be unpopular to a significant part of the nation. In this regard, the Chief is mindful of the need to coat a bitter pill that must be swallowed. Chief Justice Hughes took this into consideration when assigning to Justice Felix Frankfurter, the task of writing the opinion in the first flag-salute case, Minersville v. Gobitis (1940), which featured a state law requiring school children to salute the flag, because he was a Jewish immigrant. The Court, with only a single dissent, upheld the statute against the Jehovah’s Witnesses’ claim that it violated the First Amendment. Frankfurter wrote an opinion that drew upon his own minority status and asserted sympathy with another minority, but the effort did not allay public outrage. Three years later, the Court reversed its position and struck down a similar state statute, citing guarantees of freedom of religion and speech.

 

     Chief Justice Hughes liked to assign “liberal” opinions to “conservative” justices to diffuse opposition to the decision. In Smith v. Allwright (1944), better known as the Texas White Primary Case, in which the Court held that Blacks may not be excluded from voting in state primary elections, Hughes initially assigned the opinion to Frankfurter. Justice Robert H. Jackson intervened and suggested that Frankfurter was not the best justice to write the opinion. Although he found the reasons contemptible, Jackson noted that Frankfurter was Jewish and born in Vienna, he was raised in New England and was a former law professor at Harvard, an elite institution. Jackson persuaded Hughes that the bitter pill might be more easily swallowed if the opinion were written by Justice Stanley Reed, who hailed from Kentucky and was long associated with Southern politics.




David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.




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