Whose Court is it Now?

 by Michael C. Dorf

It's almost August, and that means that next week I'll be participating in the annual Supreme Court Review sponsored by the Practicing Law Institute. If you need CLE credit, this is an informative and entertaining way to get it. As always, I'll be joining a star-studded set of panelists. In addition to counter-punching throughout the day, I have primary responsibility for talking about three cases that I and my co-bloggers have already discussed here at DoL. Accordingly, rather than preview my remarks on those cases, I thought I'd take this opportunity to preview my comments on the overview panel. 

I'll take as my point of departure a recent CNN opinion essay by Jeffrey Toobin. In it, Toobin argues that Clarence Thomas is the de facto Chief Justice of the current Supreme Court. Why? Toobin offers the following chain of reasoning:

(1) The only thing that distinguishes the Chief from the Associate Justices is the Chief's power of assignment when the Chief is in the majority;

(2) With John Roberts more likely than any of the other Republican appointees to join the Democratic appointees on the short end of a 5-4 split, that frequently leaves Thomas, as the most senior Associate Justice with the assignment power in the most important 5-4 cases.

(3) Thus, Thomas, not Roberts, has the more important assignment power and is thus the de facto Chief Justice.

Here I'll dive into what's missing from that syllogism.

I'll begin by acknowledging that it is possible for a Chief Justice to have considerably less power than other Justices in virtue of being consistently outvoted. In order for the assignment power to mean something, a Chief Justice must be in the majority frequently.

But here's the thing. Roberts is frequently in the majority.  The statistics for last Term show that Roberts was in the majority in 91% of cases (tied for second place with Amy Coney Barrett), whereas Thomas was in the majority in only 81% of cases. Put differently, Roberts was able to assign the majority opinion in all but 9% of cases.

Ah, but perhaps Toobin thinks that those 9% are--or going forward will be--more consequential than the remaining 91%. Why he would think that is unclear. Yes, Roberts occasionally swings moderate but he votes with his fellow conservatives on many of the hottest hot-button issues.

One piece of evidence that Toobin cites to show Thomas already having his way is extremely weak. Toobin writes: 

Thomas has already exercised his assigning power in a consequential case. On November 25 last year, the court ruled, 5 to 4, that New York Gov. Andrew Cuomo violated the First Amendment's guarantee of free exercise of religion when he banned religious gatherings of more than 10 people in some areas, as a means of containing the Covid-19 pandemic. With Roberts in the minority, Thomas assigned the opinion, directing that it be published "per curiam," or by the court, which the Justices usually reserve for routine or non-controversial matters. The message of the assignment was that this was an easy case, one in keeping with the conservatives' push on the Supreme Court to allow religious people to exempt themselves from rules that apply to others . . . .

That's just silly. The case was per curiam because it was not the subject of plenary argument. The Court customarily issues per curiam opinions in "shadow docket" cases. Maybe it shouldn't, as various scholars have argued. But the reason that the Catholic Diocese case to which Toobin alludes was per curiam was not an effort by Thomas to make the decision look easy.

Moreover, even if we allow that in some important cases Thomas will be in the majority and Roberts will join Justices Breyer, Sotomayor, and Kagan in dissent, it doesn't follow that Thomas will get to direct the Court in such cases. Thomas (followed closely by Alito) is the farthest to the right of any of the Justices. If he assigns an opinion to himself in a 5-4 case and then writes it in a way that is too far right for any one of Justices Gorsuch, Kavanaugh, or Barrett, he will fail to write a majority, as opposed to a plurality, opinion. The ability to assign an opinion to oneself only enables a Justice to set the Court's direction if one is then also willing to moderate one's views to gain a majority. So Thomas can continue to be the Court's most extreme Justice or he can be a key driver of the doctrine's direction, but he can't be both.

Toobin gives the example of the Mississippi abortion case on the docket for next term as an opportunity for Thomas to showcase his leadership, presumably by frontally overruling Roe v. Wade. Thomas could very likely get Alito and Gorsuch to go along with such a decision. Perhaps he could get one of Barrett and Kavanaugh to go along too, but if either or both of them would prefer to weaken but not yet overrule Roe, or to take some other go-slow approach, the assignment power will not enable Thomas to override them.

That leads us to the intriguing possibility that Kavanaugh is the de facto Chief Justice. After all, the statistics I cited earlier show that he was in the majority last Term more than anyone else--in 97% of cases.

Yet while Kavanaugh is thus the current median Justice, I would not call him the de facto Chief Justice. To my mind, that admittedly imprecise term ought to apply to a justice who is both close to the median and has frequent assignment power in critical cases. Prior to his retirement, Justice Kennedy was sometimes considered the de facto Chief Justice, because he was both the median Justice and the senior Associate Justice. There's no one on the Court quite like that right now. The median Justice is the second most junior.

So who is the de facto Chief Justice? That's pretty easy: Roberts. He's more senior than everyone else and closer to the median than anyone except the second most junior Justice (Kavanaugh) and the most junior (Barrett). 

Lest anyone take any comfort from the fact that we are still living with the Roberts Court rather than the Thomas Court, I would remind readers that this little exercise is not really about outcomes. A majority of this Court is to the right of John Roberts, which places the Court far to the right of the center of public opinion on most issues.