The justices clearly assert their uniqueness with their concurrences and as this is on display, they show how the justices may be more different than meets the eye.
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Concurrences have played an increasingly important role in Supreme Court decision-making over time. They are nothing new though. Looking as far back as 1971’s landmark decision in New York Times v. United States, examining prior restraints on the press, we can see that along with the per curiam opinion, the justices authored six separate concurrences along with three dissents. Fast forward one year to Fuhrman v. Georgia which put a federal moratorium on the death penalty, and we see another per curiam opinion with multiple concurrences, only this time with five concurrences and four dissents. While these instances occurred a half century ago, the practice of authoring concurring opinions has played a pivotal role in how the justices define their individual styles of jurisprudence.
What may be changing though is the way justices concur. If the Court is able to rule narrowly on issues to get broad based support, then theoretically there can be more agreement in certain decisions along with concurrences rather than broader rulings with more dissents. This surely would please Chief Justice Roberts who has staked his claim on bridging the ideological divide between the justices to find some level of consensus.
Things likely played out this way at least once this term. In Trump v. Anderson, both concurrences split from the majority opinion in their analyses of the application of Section 5 of the Fourteenth Amendment. In Slate, Mark Joseph Stern noted that the metadata associated with the Anderson opinion even read as a partial concurrence and dissent for what later became the liberal justices’ concurrence. While obviously scenarios may change an opinion initially labelled as a dissent to later become a concurrence at the time of publication, this still intimates that the opinion was likely a partial dissent at some stage of drafting.
While concurrences do not show the same extent of divergent views from majority opinions as dissents, they still may show important differences in the justices’ views on a topic. Lee Epstein along with William Landes and Richard Posner authored a 2012 law review article discussing how the justices may reflect ideological differences by concurring. If this is the case then, according to the authors, even unanimous opinions may reflect key differences between the justices. That article now appears quite omniscient in thinking through the justices’ differences, expressed through concurrences, in Trump v. Anderson.
The present article proceeds by looking at concurring behavior over time and focusing on authored concurrences and votes to join concurrences since the beginning of the 2020 Term. It examines the justices’ individual concurring behavior as well as the practice across cases. The main contribution is to show how concurrences have taken on increased importance over time but also differential importance between justices. For the purpose of this article, authored and joined concurrences are treated as “concurrences” unless otherwise specified.
Expansion
One thing that can clearly be said about the Supreme Court practices of authoring concurrences and votes joining concurrences is that their frequency has increased over time. The numbers as an absolute count of concurring votes do not seem that impressive and indeed rise and fall since 1946. When the number of concurring votes is examined based on majority opinions from orally argued cases the increase is readily apparent.
In 1946 the number of concurring votes per majority opinion was .39. This dropped to a low of .30 in 1955. The average number of concurring votes per majority opinion for the period of 1946 through 2023 (the end of OT 2022) is .80. In the last complete term there were 1.23 concurring votes per majority opinion. This term there are 32 concurring votes so far in 29 majority opinions which is a rate of 1.10 concurring votes per majority opinion.
In recent years this rise is partially a product of several cases with more than the average number of concurring votes. From the 2020 through 2022 Terms the average number of concurrences in cases with at least one concurrence is 2.2. 18 of these cases had four or more authored concurrences or votes joining concurrences. Two cases had as many as six concurring votes each: Sackett v. EPA (2023) and Fulton v. City of Philadelphia (2021).
Sackett is a good case to examine under a microscope because researchers can’t even agree on how to classify the vote split. While none of the justices dissented in the case, four justices (Kavanaugh, Sotomayor, Jackson, and Kagan) concurred with the judgment, which in this instance meant they agreed with the ultimate outcome in the case but fairly strongly disagreed with how the decision was reached. This led to differences of opinion on how to characterize the vote split in the case with Oyez.org coding this as a 5-4 decision and SCOTUSBlog coding this as a unanimous 9-0 vote.
Sackett dealt with water rights and specifically the definition of “waters of the United States” under the Clean Water Act. The majority authored by Justice Alito held that the definition extends only to wetlands that have a continuous surface connection to bodies of water of the United States making them “indistinguishable” from those waters. Justice Kagan’s concurrence adopts a broader definition as she describes that such waters should also fall under the federal definition if they are “adjacent” to covered waters; not only when they are directly touching but also when they are nearby, separated by natural or artificial barriers. The difficulty in separating out these votes as those in the majority and those that are not, as well as the differences in definition of “waters of the United States” in the opinions themselves, illustrate the complexity of concurrences and how, in some instances, they are in many ways almost indistinguishable from dissents.
Votes Since 2020
To set a baseline for concurring behavior we can look at the practice across justices. The following graph shows the number of concurrences (concurring votes or authorships) in argued cases since October 2020.
Justices Thomas and Gorsuch clearly lead the pack with Justices Kagan and Roberts at the bottom. The average number of concurrences for the justices listed above in the graph is 23.89 or just above the number for Sotomayor.
Another interesting aspect of concurrences has to do with which justices tend to concur with specific other justices’ majority opinions. While there are clear lines of ideological delineation between justices that lead to predictable majority and dissenting votes in certain cases, there is less clarity in when the justices concur. There are two ways I examine these relationships with both showing concurring votes or authorships based on the author of the majority opinions. The first cut looks at the most common pairing across all cases while the second isolates these pairings in unanimous votes. The first cut includes all pairs with at least four concurring votes per majority author.
There are four pairs with eight concurring votes or authorships per majority opinion. These indicate, perhaps unsurprisingly, that the most frequent pairs share general ideological consensus. These four are Alito and Thomas, Kavanaugh and Thomas, and Roberts with both Kavanaugh and Gorsuch. While these four set the upper limit, just below we see that the only pairing with seven concurring votes or authorships per majority author is Justice Kagan with Justice Thomas. In fact, other pairings at this high level of four or more concurrences per majority author include Justice Sotomayor with Justice Thomas, Justices Gorsuch and Alito with Justice Sotomayor, Justice Jackson with Justice Barrett, and more.
As the discussions of Trump v. Anderson and Sackett v. EPA show, there is something unique about unanimous opinions (let’s assume these are cases without any clear dissenting votes), especially with multiple concurring votes, showing differences in jurisprudential approaches reaching the same overall outcomes. The next graph shows these pairings with a minimum of three concurring votes or authorships for each majority author.
Here we see most prominently multiple justices frequently concur with Justice Kagan’s unanimous decisions, and these are often the more conservative justices. In fact, the justices that concurred most frequently with Justice Kagan’s unanimous majority opinions were Justices Thomas and Kavanaugh. There are at least two hypotheses that can be derived from these numbers: the first is that Justice Kagan is able to assemble diverse coalitions with her majority opinions that, while having different visions for legal reasoning, end with the same outcome, and the second that Justice Kagan as potentially the most moderate liberal justice on the Court is able to better bridge the ideological divide in less divisive cases.
A final way I examine the justices’ concurring votes and authorships is by examining which justices concur most frequently in non-unanimous decisions based on the differential between majority and dissenting votes.
The most frequent concurring justices based on vote split are Justices Thomas and Gorsuch (the two most frequent concurring justices across this period in the absolute counts) in 6-3 decisions. This likely indicates their propensity to concur in ideologically divided decisions, hinting that while these justices agree with the conservative outcomes, they have identified unique and different approaches in reaching these outcomes. For Thomas, in instances like his concurrence in the Dobbs decision, we see that he would push further in the conservative direction than the majority of the Court. Justices Thomas and Kavanaugh have the next most concurrences in divided cases, both by seven votes (8-1 decisions). Here it is apparent that in cases near consensus, these two justices tend to still be at the edge of majority opinions as the lone concurring votes (along with a lone dissent). Conservative justices also are the only justices with five concurrences based on vote splits with Alito and Kavanaugh in 6-3 decisions, and Gorsuch in both 7-2 and 8-1 splits.
Concluding Thoughts
This analysis shows the overall upward trend in concurring votes and opinions and helps define possibilities for why this is occurring. We see how concurrences in many instances relate to justices with ideological similarities, but that these pairs are not exclusive to justices with ideological overlap.
The votes by justices sharing ideological proclivities hints at how even justices that share a preference for the same outcome often differ on how to reach that outcome. The votes by justices that differ ideologically show how some justices (most prominently Justice Kagan) can bridge ideological divides to assemble diverse coalitions in the majority.
This leaves us with the question of whether today’s concurrences would possibly be more like dissents in previous Court eras. While we can’t answer this with certainty, the justices clearly assert their uniqueness with their concurrences and as this is on display, they show how the justices may be more different than meets the eye, regardless of whether their general ideological dispositions overlap or do not.
Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at adam@feldmannet.com. Find him on Twitter: @AdamSFeldman.
