Should a liberal succeed the late Justice Antonin Scalia, Ruth Bader Ginsburg could well assume a lofty honorific in the twilight of her career — Chief Justice of the United States.
Though Ginsburg will never formally occupy the office — it belongs to John Roberts until he retires or dies — a liberal majority on the Court would lift her influence to new heights. This fact is most evident in the wielding of the assignment power. After the justices convene after oral arguments to evaluate a case and cast votes, the chief justice will assign authorship of the Court’s decision to himself or one of the justices in the majority.
When the chief is not in the majority, however, that duty falls to the most-senior justice in the majority. Should the Court continue to split 5-4 along ideological lines, Ginsburg would be the senior-justice in the majority, and therefore have the power to assign rulings.
Professor Akhil Reed Amar of Yale Law School, one of the leading constitutional scholars in the nation, says this development realigns the tectonic plates of power. In today’s New York Times, he notes “We may have, de facto, the first female chief justice.” (RELATED: Report: Trump Mulling Peter Thiel For Supreme Court)
The power of assigning opinions is no mere formality. Though all justices in the majority participate in crafting the final ruling in one sense or another, the justice responsible for writing a majority opinion dramatically impacts the scope and substance of the decision.
The difference in author can mean the difference between upholding a precedent and striking it down, affirming a constitutional right or setting the ideological terrain for a future Court to act with more bravado. The chasm between assigning an opinion to Justice Stephen Breyer, a fact-based jurist who tends to write narrowly tailored opinions, and Justice Sonia Sotomayor, who has no trepidation about reading the law capaciously, is wide and deep.
There are reasons to believe this will not come to pass. Should a liberal successfully run the gauntlet of the Senate GOP, there is every reason to believe Justice Anthony Kennedy will tact gently to the left, as he did late in the Court’s last term.
Kennedy is a justice who relishes standing in the breach, voting strategically to maximize his influence over the high court’s final decision — he was in the majority in 98 percent of the Court’s decisions last year. Should Kennedy choose to join the liberals in controversial decisions in future terms, he would wield the assignment power, as his seniority exceed’s Ginsburg’s.
This, no doubt, could stymie the ascendant liberals, making their majority something more like a soft-left coalition, as opposed to a revival of the Warren Court’s heydey.
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