The Distribution of Supreme Court Opinions
posted by Gerard Magliocca
When you review the history of the Supreme Court, one thing that quickly becomes clear is that there was no norm that the work of opinion writing should be distributed evenly. The best example is the Marshall Court, where the Chief Justice wrote most decisions. Some of Marshall’s colleagues served for years without writing anything, though they certainly contributed to the Court’s work.
This practice continued into the twentieth century. Willis Van Devanter, one of the “Four Horsemen” who opposed the New Deal, was famous for having pen paralysis. He only wrote a handful of opinions over twenty-five years, but was known for his savvy inside of the Court in shaping its deliberations.
My question is when did this norm change to the modern practice, whereby it is expected (a serious illness aside) that the Justices will be assigned a roughly equal number of majority opinions. And is this a good change? Should the better writers get more cases to write? If not, why not? Just to have more diversity? Collegiality? Is it an ego issue if somebody writes a lot less than the others?