Analysis: The behind-the-scenes power John Roberts wields to ensure his influence with justices

CNN

2 days ago

Chief Justice John Roberts often laments that he has limited clout as he deals with his eight Supreme Court colleagues.
'You can't fire people if they don't follow you. You can't cut their pay,' he told a group of federal judges on Saturday, the day after the court released its final opinions of the term. 'You have to be able to communicate what you think is important, and sometimes that means doing it eight different ways.'
But Roberts, in fact, has several powerful levers, perhaps the most valuable being the power to assign opinions that speak for the court.
When the chief is in the majority – as he was more than anyone this term – he chooses which justice will write the opinion. That's important because the force of any Supreme Court decision exceeds its bottom-line vote. Its rationale sets a precedent for future cases. Even the rhetoric and tone can influence lower court judges.
For the author of an opinion, the endeavor offers a chance to steer the law and can be a point of personal pride. Completing his 20th session on America's highest court, Roberts has routinely kept the most important cases for himself, including those involving presidential powers.
Still, he has wielded his assignment power strategically over the years, to influence and reward colleagues. In some situations, his assignments have appeared intended to cut against type or disprove ideological generalizations of the court.
And then there was last Friday, when Roberts produced a true – and tactically intriguing – surprise.
As he opened the final courtroom proceeding of the 2024-25 term, he revealed from the elevated bench that Justice Amy Coney Barrett had the opinion for the court in the most awaited case.
It was the case that would effectively release President Donald Trump from dozens of lower-court orders blocking his second-term policies across the country, including his effort to roll back the current birthright citizenship given all babies born in the United States regardless of their parents' legal status.
The assignment was a plum one for the junior justice on the right wing – a justice who'd been lambasted by the MAGA world (and by Trump himself) for being insufficiently loyal, despite her overwhelmingly conservative record – reinforced by the decision she was about to read from the bench.
The surprise was evident among some in the staid courtroom. Justice Department lawyers, seated at tables below the mahogany bench, quietly exchanged glances, as did journalists in the press section to the justices' right.
Lawyers following the case had presumed Roberts would keep the opinion for himself, as he has done for all major controversies involving Trump or at least give it to a justice more senior than Barrett.
Roberts' choice immediately blunted Trump's criticism.
'I just have great respect for her,' the president said of Barrett after the decision in Trump v. Casa was issued. 'I always have. And her decision was brilliantly written today – from all accounts.'
For the strategic chief, the choice of Barrett also strengthened his alliance with a pivotal justice whom liberals, for their part, have been trying to entice toward the center.
Barrett and Roberts did not respond to requests for comment.
Like the eight associate justices, the chief holds one vote. But he dictates much of the court's agenda, as he oversees oral arguments and runs the closed-door conferences where the justices discuss and vote on cases.
By tradition, the most senior justice on the majority side of a case assigns the opinion. (The chief justice enjoys seniority over all justices, irrespective of their longer tenure.)
Roberts was in the majority on this conservative dominated bench more than any justice last session, and he determined who would be the author of 54 of the 56 signed opinions handed down after briefing and oral argument.
This is the Roberts Court in both the colloquial and real sense; he is rarely relegated to dissent, although two exceptions are notable: the 2015 decision declaring a right to same-sex marriage and the 2022 decision striking down all federal abortion rights.
All modern chiefs, to various degrees, have employed the assignment power to influence outcomes. Chief Justice Warren Burger, who served from 1969 to 1986, was known to switch his vote to ensure he would be in the majority and control the opinion. Burger, appointed by President Richard Nixon, favored colleagues who shared his right-wing ideology, often relying on then-Associate Justice William Rehnquist, for whom Roberts served as a clerk during the 1980-81 term.
Rehnquist, elevated to chief justice by President Ronald Reagan in 1986, gained a reputation for being less manipulative and more even-handed. Fixated on speed and efficiency, Rehnquist also rewarded associate justices who wrote fast and avoided tangents that would cause a justice to drop off. (An author needs to hold at least five justices on the opinion for a majority.)
Justice Sandra Day O'Connor, who had known Rehnquist since their years together at Stanford Law School, understood Rehnquist and often finished her opinions first.
When Ruth Bader Ginsburg joined the bench in 1993, she complained to O'Connor that Rehnquist's first assignment to her was a complicated pension dispute. 'Ruth, you just do it,' O'Connor admonished, 'and get your opinion in circulation before he makes the next set of assignments.'
Roberts, at the recent judicial conference, implicitly acknowledged that the current justices let draft opinions pile up. They left six major decisions to the last day.
'People have their own ideas of a schedule,' he said of other justices. 'Things were a little crunched toward the end this year. We'll try to space it out a little better next year, I suppose.'
Roberts, who succeeded Rehnquist in 2005 after being appointed by President George W. Bush, assigns a batch of opinions after each two-week sitting of oral arguments and the related conference votes. The public learns of the assignments only when final decisions are announced.
The chief justice has usually kept the stand-out cases, especially those involving clashes with the executive branch, perhaps to bring the weight of his stature as chief. Until last Friday, he had penned the important cases centered on Trump, such as the 2018 decision upholding his first administration's travel ban on mainly Muslim countries; the 2019 decision impeding Trump's effort to add a citizenship question to the decennial census; and the pair of 2020 controversies over Trump's effort to keep his business dealings secret as he faced government subpoenas.
Last session, Roberts wrote the decision granting Trump substantial immunity from criminal prosecution.
Earlier this June, Roberts authored the decision in the controversy over state bans on certain medical care for transgender youths. His decision affirmed state restrictions on puberty blockers and hormone therapy but declined to adopt a rationale of fellow conservatives, including Barrett, that would further disadvantage bias claims brought by transgender individuals.
Roberts has rewarded restraint (relatively speaking on this hard-right court) and crossover votes from ideological camps. In some situations, his assignments cut against type or dispel the notion that the dueling sides cannot come together.
He assigned liberal Justice Ketanji Brown Jackson, the court's first African American woman and a jurist vigilant regarding anti-bias protections, the court's decision in a 'reverse discrimination' case. The court unanimously sided with a straight woman in Ohio who wanted to sue her employer after her gay boss refused to promote her.
In a separate case issued on the same day, Roberts tapped liberal Justice Sonia Sotomayor for a church-state clash that favored religious interests. Decided on a unanimous vote, the case reversed a Wisconsin court's ruling and opened the door for a Catholic Charities chapter to obtain an exemption from state unemployment taxes because of its religious status. The high court decision added to its series favoring religious conservatives.
Roberts appears to try to distribute cases evenly among the nine. Although the politically charged disputes, in which liberals frequently find themselves in dissent, draw most of the public attention, there are plenty of low-profile, non-ideological cases to go around.
Statistics on SCOTUSblog compiled by Jake Truscott and Adam Feldman show that of the total 56 opinions doled out, Barrett and fellow conservatives Clarence Thomas and Brett Kavanaugh each had seven; Roberts, Sotomayor, Samuel Alito, Elena Kagan and Neil Gorsuch had six; and Jackson had five.
On the left, senior Justice Sotomayor controls who writes the main dissent when liberals lose. She held onto the dissenting opinions in what many viewed as the three most significant cases and took the dramatic step of reading portions of all three from the bench.
A former Notre Dame law professor, Barrett became Trump's third appointee during his first term. She was named in 2020, during the final weeks of his administration after Ginsburg's sudden death.
Barrett's cautious but effective approach has given her an outsized role among the nine. Barrett sometimes casts the decisive vote or drafts the compromise rationale, as she did in an Idaho abortion controversy last year.
Liberals have tried to entice her toward middle ground in other cases. During oral arguments, they often pick up on her questions as they make their own points.
Roberts, too, has appeared especially attentive. When it comes to coveted decisions in high profile cases, a junior justice typically must wait years for a big opinion at this institution that prizes seniority.
But in 2023, he conspicuously assigned her the decision in a major dispute over Native American rights. Barrett wrote the opinion upholding a 1978 law that prioritized the placement of Native American children with Native families or tribes in custody proceedings. Some commentators viewed the decision endorsing Native rights, on a 7-2 vote with only Thomas and Alito dissenting, as a surprising progressive turn.
Gorsuch, the court's most vigorous defender of Native American rights, signed all of Barrett's opinion even as he wrote separately to further detail detail the cruel history of tribal children removed from their families and to press for greater Indian sovereignty.
In more recent years, Barrett has guided compromises as the crucial fifth vote. Yet in Friday's Trump dispute, her vote was one of six and her approach was one that Roberts himself might have adopted if he'd held onto the case.
The majority restricted the authority of US district court judges to impose nationwide injunctions to prevent arguably unconstitutional government policies while litigation proceeds. It was a resounding victory for Trump's legal team, although the court left open the possibility that people challenging the administration could obtain broad remedies through class action lawsuits.
In her written opinion and oral summary from the bench, Barrett took a page from Justice Antonin Scalia and his 1999 decision in Grupo Mexicano de Desarrollo v. Alliance Bond Fund, involving a dispute over equitable remedies between a Mexican holding company and an investment fund. Barrett was a law clerk to Scalia during that 1998-99 session as he was drafting the opinion.
Adopting her mentor's originalist method, Barrett in the new case looked to early American history for an analogue to the universal injunctions judges have used to block Trump's policies and those of presidents before him.
'Nothing like a universal injunction was available at the founding, or for that matter, for more than a century thereafter,' she wrote, repeatedly citing Scalia's opinion. 'Thus, under the Judiciary Act (of 1789), federal courts lack authority to issue them.'
And in a footnote targeting liberal dissenters' argument, she invoked a choice Scalia line: 'It is precisely because the universal injunction is a new, potent remedy that it poses new, potent risks. Our observation in Grupo Mexicano rings true here: 'Even when sitting as a court in equity, we have no authority to craft a 'nuclear weapon' of the law.''
Scalia, with his incendiary rhetoric and unyielding conservatism, sometimes had trouble holding a majority. He was not a safe bet for a difficult opinion assignment.
Barrett is proving otherwise. Although some conservatives wrote separately to expound on their individual positions, all signed her opinion in full.