Paul Cassell, a former Burger clerk, defends the former Chief’s votes in a series of cases where he departed from the original meaning:
Blackman fails to adequately consider the situation that The Chief all too often [found] himself in—one vote on a nine-Justice court that was often inclined to reaffirm and even expand dubious Warren Court precedents. And, if he had [not] joined or written dissenting opinions, the result would often have been that the case assignment would have then moved from him (as the senior, Chief Justice) to a very liberal justice, with an even worse decision likely emerging. Working within these considerable constraints, The Chief took important steps to help to set the stage for the later originalist revolution.
It is an interesting question whether authoring or joining an opinion one disagrees with in order to control the assignment of the opinion is legitimate. I haven’t thought deeply about this issue, but I am inclined to say no, it is not legitimate.
Here is one quick thought about what is a complicated matter.
It is true that Burger’s assignments may have kept the law from becoming worse than it would have otherwise been if a more nonoriginalist justice were to have written the opinion. But writing a strong dissent also has advantages. It makes clear the weaknesses of the Court’s decision and it indicates that there is less support for that decision than would be the case if the Chief Justice had joined or authored the majority decision.
Posted at 6:13 PM