Authoring a majority opinion carries great weight, as the assigned justice sets the initial framework of the decision, controls the first draft, and shapes which arguments the majority does and does not address.
Although the court does not announce who will author each opinion, it is possible in advance to get some sense of who is likely to do so. This is because, as discussed in yesterday’s closer look, for each sitting the court tries to assign at least one majority opinion to each justice. Given this, once enough justices have written opinions that sitting, one can use process of elimination to determine who remains likely to write. As Amy noted on our May 28 live blog while awaiting the morning’s decisions, “We still have three opinions that we’re waiting on from November: Landor, Fernandez, and Rutherford. Three justices have not yet written for November: Kavanaugh, Barrett, and Jackson.”
And while Landor v. Louisiana Department of Correctionsdidn’t come down, that day’s decisions included Rutherford v. United States and Fernandez v. United States, both authored by Justice Amy Coney Barrett.
As for opinions in general (majority and otherwise), a case’s content can serve as a decent predictor of who may write. As Zach noted on the same May 28 live blog in response to a question on the author of the birthright citizenship case (which is very likely to be Chief Justice John Roberts) “my (complete) guess is [Gorsuch] won’t have … much to say in that case (and may not write at all). Unless there’s an issue re: American Indians!” Indeed, Indian law has long been of great importance to Gorsuch, and one can almost guarantee he will write in such cases.
In a similar vein, Justice Ketanji Brown Jackson is the first former public defender to serve on the Supreme Court; she represented indigent clients from 2005 to 2007 before becoming a federal judge. Given her background, it is then perhaps unsurprising that Jackson has written several important criminal sentencing opinions, including the 5-4 decision in Hewitt v. United States on the First Step Act (and dissented in others).
And Justice Elena Kagan – who served in President Bill Clinton’s White House and taught administrative law at Harvard Law School (along with serving as its dean) before becoming the first female solicitor general – often writes on administrative law.
The justices themselves have, in public, rarely discussed the issue of who writes what. The assignment process happens entirely behind closed doors, without even the justices’ law clerks present. But the gravity of the opinion assignment decision is not new – many decades ago, Justice Felix Frankfurter once described opinion assignment as “perhaps the most delicate judgment demanded of the chief justice.”