Beginning to Write Separately: The Origins and Development of Concurring Judicial Opinions

Abstract

Introduction While political scientists and legal academics have both evinced a “fascination with disagreement on courts,”1 this scholarly concentration on conflict rather than consensus has tended to focus on dissent and dissenting opinions. As far as we can tell, there is no authoritative history of concurring opinions in the U.S. Supreme Court. This article is a first effort to correct that oversight by examining developments and change in concurring behavior from the founding through the White Court (1921). This period covers the emergence of an institutionally independent national judicial branch and ends before the start of the modern, policy‐making Court era, which we argue begins with the Taft Court and the creation of a fully discretionary docket.

Acclimation Effects and the Chief Justice: The Influence of Tenure and Role on the Decisional Behavior of the Court’s Leader, 1888-2007

“…Clearly, this applies not simply to the broad differences in policy views that the justices manifest (liberal or conservative) but more so in terms of the fine doctrinal differences that members of the same policy coalition may hold. That is, a majority may agree on a broad policy pronouncement or outcome in a series of cases but disagree strongly about the doctrinal bases on which that view is grounded (Maveety, 2003;O'Brien, 1999;Pritchett, 1948;Turner, Way, & Maveety, 2010). Collins (2009, p. 1) asserts that justices may write separately in an attempt to reduce the "cognitive dissonance" in a vote that is not entirely consistent with their policy views.…”

“…Collins (2009, p. 1) asserts that justices may write separately in an attempt to reduce the "cognitive dissonance" in a vote that is not entirely consistent with their policy views. This proposition may be particularly at work when the Court's policy coalitions are in flux or there are doctrinal shifts among the justices (Maveety, 2003;O'Brien, 1999;Turner et al, 2010;Walker, Epstein, & Dixon 1988). Thus, while the majority may be gaining ground relative to the minority, it may be fragmenting within itself, leading to greater dissensus broadly speaking.…”

“…However, in terms of the rise of dissensus during the Stone Court, Walker, Epstein, and Dixon (1988) discount that explanation and point to the unique influence of Stone on the then-increasing rate of dissensus. Hence, the closer that the chief justice's policy preferences are to those of the remainder of the Court, the less likely that the justice will be impelled to vote or write separately so as to articulate the differences between his or her views and those of the majority coalition, especially as they pertain to microlevel doctrinal differences that may exist among members of the majority bloc (Maveety, 2003;Turner et al, 2010;Way & Turner, 2006).…”

“…I separately consider voting and opinion-writing behavior for dissents and concurrences for two primary reasons. First, the norms of consensus that governed when and how justices could distinguish themselves from the majority coalition have changed across time so that presently justices are less inhibited from concurring or dissenting than previously (Caldeira & Zorn, 1998;Haynie, 1992;Hurwitz & Lanier, 2004Lanier, 2003;Maveety, 2003;O'Brien, 1999;Turner et al, 2010;Walker, Epstein, & Dixon, 1988). These norms changed to first accommodate the justices' voice of dissensus generally and then they changed once again to allow their publication of concurring opinions and then later dissents.…”

“…This tendency may gradually manifest itself as the chief becomes better attuned to fragmentation and ideological cohesion concerns, as he seeks to imprint the Court with his view. 11 As he helms the Court for more terms, he learns how to marshal the Court more effectively and comes to understand the particular aspects of each of the justices' personalities and their concordant views in various policy domains (Maveety, 2003;Murphy, 1964;O'Brien, 2008;Turner et al, 2010).…”