The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Chief Justice Roberts's Assignment Dilemma

If Justices Thomas and Alito are dissent, and Justices Kavanaugh and Barrett vote with the progressives, the Chief may join the majority to avoid having Justice Sotomayor make the assignment.


On the current Roberts Court, there are two primary paths to count to five. The most common path is when five of the Court's conservatives vote together as a bloc. When the Chief Justice joins that group, he can use his assignment power to control where the majority goes–especially where he assigns the case to himself. But when Roberts is in dissent, then Justice Thomas can assign the case, even to himself.

The second path to five is when two of the Court's conservative vote with the Court's three progressives (who seldom break formation). When the Chief is one of the two conservatives who breaks lefts, he retains the assignment power. But when Justices Kavanaugh and Barrett join the three progressives to make a five-member majority, the Chief loses the assignment power. Rather, Justice Sotomayor can assign the majority, even to herself.

Thus, there is a dilemma. In a case where the liberal position garners five votes without Roberts, does the Chief Justice hold his nose and join the majority to ensure he can assign the majority opinion, and keep the case from veering to the left?

I raise this point in light of Reed v. Goertz, which I wrote about on Wednesday. During oral argument, it seemed that Chief Justice Roberts was solidly against the prisoner. Yet, he voted with the majority on Justice Kavanaugh's super-narrow six-page decision. Had Roberts dissented, then Justice Sotomayor could have written a far more expansive opinion on the rights of criminal defendants. But by providing the sixth vote–with the outcome already set–Roberts was able to keep the case narrow. With the Chief, I presume most things he does are strategic.