Justice Kavanaugh’s “Principal Concurrences”


On the Supreme Court docket, there’s a hierarchy for itemizing opinions. The bulk opinion all the time comes first. When the Court docket is fractured, and there’s no clear majority, the opinion with essentially the most assist is often listed first. When the case is an absolute cluster, generally the opinion by the Justice with essentially the most seniority is listed first, however there’s some play within the joints. After the bulk/controlling opinion, the concurrences are listed by seniority. Subsequent come the concurrences in judgment solely, that are additionally listed by seniority. Lastly, the dissents are listed, which once more are sorted by seniority.

When there are a number of dissents, the bulk opinion will confer with a selected dissent because the “principal dissent.” However the time period “principal concurrence” is much extra uncommon. A fast search of Westlaw reveals just one such utilization earlier than 2021. In Morrison v. Nationwide Australia Financial institution Ltd.(2010), Justice Scalia wrote the bulk opinion, Justice Breyer wrote an opinion concurring partly, and concurring in judgment, and Justice Stevens wrote an opinion concurring solely in judgment. Justice Scalia referred to Justice Stevens’s opinion because the “principal concurrence.”

Extra lately, the phrase “principal concurrence” has popped up twice. In Lange v. California (2021), Justice Kagan wrote the bulk opinion, Justice Kavanaugh wrote a concurrence, Justice Thomas wrote an opinion concurring partly and concurring in judgment, and Chief Justice Roberts wrote an opinion concurring in judgment. Justice Kagan’s majority opinion referred to Justice Kavanaugh’s opinion because the “principal concurrence.”

And yesterday, the Court docket determined Sackett v. EPA. Justice Alito wrote the bulk opinion, Justice Thomas wrote a concurring opinion, Justice Kagan wrote a concurrence in judgment, and Justice Kavanaugh wrote a concurrence in judgment. Justice Kagan’s dissent, once more, referred to Justice Kavanaugh’s separate writing because the “principal concurrence.” Kagan’s opinion, which had three votes, was listed first, as a result of she has extra seniority, however Kavanaugh’s opinion had 4 votes. I suppose the variety of votes makes it the “principal concurrence.”

In two instances, determined within the span of two years Justice Kagan has referred to a Justice Kavanaugh concurrence because the “principal concurrence.” Nothing a lot to see right here, however I get pleasure from monitoring these new nomenclatures on the Court docket.

Lastly, I might be remiss if I didn’t level out an apparent pun, given the truth that President Nixon signed the Clear Water Act: SCOTUS mentioned Sackett to me!

The Lemon take a look at was established in 1971, the Clear Water Act was handed in 1972, and Roe was determined in 1973. The Nixon years should not having a great time on the Supreme Court docket.