Thinly sliced baloney, Wonder Bread, concurring opinions and the Supreme Court

imagesI like my baloney thinly sliced.

220px-Strong_bodiesThat is not true, however, when, as a district judge, I read and try to apply the opinions of the Supreme Court that are the functional equivalent of thinly sliced baloney held together, not by two pieces of Wonder Bread, but by concurring opinions. To put the matter less figuratively, like Chief Justice Roberts,* I believe the Justices would do us all a favor by speaking with one voice as much as possible even if that means sublimating their individual views to some reasonable degree. In other words, I wish there were far fewer concurring opinions.**

Take a gander at these disturbing statistics taken from the superb 2015 article***written by Professor Cass Sunstein entitled Unanimity and Disagreement On The Supreme Court, 100 Cornell L. Rev. 769 (2015), **** to wit:

[F]rom 1801 through 1940, the overall percentage of cases with at least one concurring opinion was 1.7%, and the median Term had a rate of 1.4%. Remarkably, there was no Term in which the rate of concurrences was as high as 15%, and the concurrence rate exceeded 10% during only five Terms (1805, 1837, 1842, 1847, 1856). In fact, thirty-six years had no concurrences at all, and in seventy-two years (more than half the total), the number of concurrences was one or fewer.

Id. at 776 (footnotes omitted).

From 1941 to the present, the picture is altogether different. . . . The rate of concurrences grew to 11% in 1941 and then to 16% in 1942. From that point, it has never fallen below 10%, and indeed it has been below 20% in only two years (1943 and 1944).  The overall rate of concurrences is 37%, and in the median Term, it is 38%.

Id. at 780 (footnotes omitted).

Sunstein does not come to a definite conclusion as to why things changed so dramatically in 1941. If I read the professor correctly, he believes a combination of factors contributed. Two factors were apparently the most important. First, there was the willingness of Chief Justice Stone to tolerate and even encourage differing views that contributed to the dramatic shift away from majority opinions unadorned by the frosting of concurring opinions. And, more importantly, the rise of the “academic Justice” appears to have been the main driver for many Justices to equate opinion writing with dueling law review articles. Consider Professor Sunstein’s emphasis on this “key point”:

The key point here is that the new Justices, above all Frankfurter, favored a more academic atmosphere, in which Justices would develop competing views and ultimately feel free to express them. Consider Frankfurter’s remarkable words, circulated to one of his colleagues:

Just because we agree in the result . . . and because no immediately important public issue is involved by our different approaches in reaching the same legal result, it is at once interesting and profitable to discuss the underlying jurisprudential problem. And so I venture to make some observations on your opinion, I hope in the same spirit and for the same academic purpose as I would were I writing a piece as a professor in the Harvard Law Review.

In a Memorandum for the Conference, Frankfurter wrote that while “Unanimity is an appealing abstraction,” it is also true that “a single Court statement on important constitutional issues and other aspects of public law is bound to smother differences that in the interests of candor and of the best interest of the Court ought to be express.”

Id. at 792-793.

In my view, Frankfurther (and others like him, such as Professor Sunstein) are mistaken when they assert that more “law review articles” in the form of competiting opinions in the same case arriving at the same conclusion, but taking different paths, is a good thing. On the contrary, I think it is a bad thing.

Consider a very recent example of case where concurring opinions abound, and, to my way of thinking, do very little except to cause unnecessary confusion while no doubt launching a plethora of law review articles that will be read by a few elites with too much time on their hands. The case is Williams-Yulee v. Florida State Bar, No. 13-1499 (April 29, 2015)(holding that “many . . . States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech. . . .We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”)

Pretty straight forward, right? Judges aren’t politicians even when they run for a judicial office, so Florida can keep them from personally soliciting money in order to promote an ethical judiciary in substance and in appearance.

OK, now consider this. ROBERTS, C. J., delivered the opinion of the Court, except as to Part II. BREYER, SOTOMAYOR, and KAGAN, JJ., joined that opinion in full, and GINSBURG, J., joined except as to Part II. BREYER, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined as to Part II. (That is, Justice Breyer concurred on his own, and concurred in Ginsburg’s concurrence but only as to part of it.)

The great number of concurring opinions, most of which resemble thinly slice baloney, do nothing but confuse federal trial judges and federal practitioners who care far less about law review articles than they do about the real cases in which Supreme Court opinions must be applied. In short, the explosion of concurring opinions proves that many of the Justices have forgotten who are the main consumers of the Court’s work product.


*Jeffrey Rosen, Roberts’s Rules, The Atlantic (2007) (“Throughout its history, Roberts argues convincingly, the Court has best served itself—and the nation—when its individual justices have been willing to subordinate their own agendas in the interest of building judicial consensus and institutional legitimacy. Whether he will be able to resurrect John Marshall’s vision in a polarized, unbuttoned, and personality-driven age remains to be seen. But his ultimate success will depend not only on his colleagues but also on his own temperament and character. Roberts approvingly quoted the observation of Chief Justice Charles Evans Hughes that ‘Marshall’s preeminence was due to the fact that he was John Marshall.’ If Roberts succeeds, his success will be due to the fact that he is John Roberts.”)

**This post does not address the utility or propriety of dissenting opinions. That is an entirely different package of baloney.

***Unfortunately, the article sits behind a pay wall for now.

****Professor Sunstein and I disagree about the contempt I generally hold for concurring opinions. The brilliant Sunstein concludes his article this way: “It is tempting to lament the post-1941 period and to suggest that the old norm promoted credibility and legitimacy, helped stabilize the law, and increased the likelihood of minimalist rulings. No one should deny that if the Court is persistently fragmented, and if the fragmentation occurs along political grounds, some people will lose faith in it–especially if their preferred views are consistently rejected. In any particular historical period, an analysis of the costs and benefits of internal division may argue for an increase in self-silencing. We have seen, however, that the arguments in favor of higher levels of consensus rest on fragile empirical foundations. The post-1941 norm cannot be shown to compromise the Court’s role in American government, or to disserve the constitutional order.”

29 responses

  1. How do you think we feel? Except in plain-vanilla cases, litigating in federal district court is playing United States Reports Roulette. You may have precedent exactly on point, but there is a one-in-three chance that that the judge will simply ignore it, and a five-in-six chance that the Court of Appeals won’t fix it when he does.

  2. Judge:
    I would generally agree with you. Yet, in some instances there may be a fundamental difference between voting for the opinion in a case versus voting for the result, with a concurrence allowing a justice to do the latter but not the former.

  3. Robert,

    I don’t disagree that in some instances a concurring opinion might be necessary. But, in my view, those are far and few between IF the otherwise concurring judges are willing to sublimate their slightly different views to the best interests of the consumers of the opinions. All the best.


  4. So, Judge, after reading the Court’s Elonis opinion, if you had to decide if recklessness was a sufficient mens rea to support a conviction under 18 U.S.C. 875(c) how would you instruct the jury? Would you give any consideration to Justice Alito’s concurring opinion (finding that recklessness suffices) even though the majority of the Court doesn’t decide that issue?

  5. RGK,
    I’m moderately ok with concurrences as long as everyone is generally on the bandwagon. Yes they’re a pain but at least you have some semblance of what the heck is supposed to happen. The ones I despise are pluralities. Rather than waste everyone’s time by being confusing, the Court should just dismiss the certiorari as improvidently granted and let the lower opinion stand. That’s why we have different circuits: they should be the hair splitters, not the Supreme Court.


  6. The practice of concurring opinions forgets one of the primary reasons for a high court (to assure a uniform interpretation of the law) and for published opinions (to give guidance to litigants, lawyers, and trial judges as to the rules). It’s not just concurring opinions, it’s the occasional general test or holding that leaves key parts of the issue to be resolved later.

    For example, the GPS case from several years ago. The Supreme Court found that the Fourth Amendment applied to GPS but left open the issue of whether the automobile exception might apply to placing a GPS device on an automobile. Or Crawford, holding that there was this thing called a testimonial statement that was at the core of the Confrontation Clause, but that the Supreme Court was not ready to define what qualified as a testimonial statement just yet (and still haven’t). When the rules are blurred, it becomes harder for attorneys to give competent advice to clients or assess what is a fair offer in a case because nobody knows how strong the case is or what might happen on appeal.

  7. Plurality opinions are usually accompanied by lots of concurring opinions and are even better at fostering confusion. Two of my favorites: Albright v. Oliver, 510 US 266 (1994) and Chavez v. Martinez, 538 US 760 (2003).

  8. “The post-1941 norm cannot be shown to compromise the Court’s role in American government, or to disserve the constitutional order.”

    That all depends on what criteria one uses to measure the court and the metric on chooses to analyze that criteria. For example, Gallup has been tracking SCOTUS since 1972 and at best the results are equivocal.

    My own view is that academics like the current system because it flatters them. They can feel at some tangential level a part of the conversation and they get an ego boost when the court cites one of their law review articles. Nevertheless, if it can be shown the the current system hurts, it can’t really be shown that it helps either. And I share RGK’s concern that it has made the court more elitist.

  9. One of the gaps between the Supreme Court and lower courts in this area is that the Justices assume that lower court judges understand the Marks test for identifying which opinion is controlling. To the Justices, a non-controlling concurrence can’t cause any confusion because no one could think it is controlling. But it turns out that a lot of lower court judges aren’t that familiar with the Marks test, so they look at a divided opinion and see something quite different from what the Justices see.

  10. Dear Orin,

    Thanks for the clarification. But, I think your last sentence is illustrative of the real world practical problem.

    You write: “But it turns out that a lot of lower court judges aren’t that familiar with the Marks test, so they look at a divided opinion and see something quite different from what the Justices see.” What the Justices see and what we see is no doubt a function of their brilliance, but it also a confounding problem for many of us in the hurly burly world in which trial judges and practitioners live.

    Thanks for your comment. All the best.


  11. Orin, what do you and the Justices “see” when applying the Marks narrowest grounds test to the divided, plurality, opinion in Williams v. Illinois, 132 S.Ct. 2221 (2012) — a case that doesn’t contain a “narrowest opinion”? And what should a lower court see?

  12. Well, just to clarify, the Judge’s post here deals with concurring opinions generally, whereas the Marks test is about plurality opinions, so apparently my comment about plurality opinions got everyone all confused, or at least as confused as I am.

    But like criminallawscholar I’d be happy to learn Prof. Kerr’s opinion on what, if anything, Albright or Chavez held. The former is usually cited for the proposition that due process does not require probable cause to prosecute, but maybe the 4th amendment does. I certainly disagree that that’s Albright’s holding, but I’d be very interested in anyone else’s take.

  13. I don’t think the Marks test provides the clarity Orin thinks it does. The recent Zivotofsky case is illustrative. What is a person supposed to make of Justice Breyer’s joining the majority opinion then writing a concurrence that says he’d rather not decide the case at all. What the hell is that (pardon my French) under the Marks test? Does that makes Thomas’s vote the fifth vote? And if so then which is “narrower”: Thomas’s concurrence or the majority opinion? God if I know.

    There is excellent point that it should not take a “test” to figure out what SCOTUS is saying–they should just say it “in plain English”. And if they can’t say it maybe its better not to take the case at all.

    Of course academics love this type of thing because they can write lots of words about it and thus justify tenure decisions. But I don’t think it serves the court well.

  14. Breyer joined the majority opinion, so the majority opinion has five votes for being a correct statement of the law. Breyer’s concurrence on a jurisdictional question does not necessarily undermine that holding. The problem with Marks is defining the narrowest basis when the different opinions suggest wildly different facts or tests as controlling.

  15. Thanks for the link, but at 56 pages I might not get to a detailed reading for a while.

    If I were running things (heaven forbid) the rule would be that plurality opinions don’t settle anything and don’t constitute precedent, but of course are helpful in the sense that they obviously identify and explain a problematic area of law which presumably the SCOTUS will resolve in due course in an appropriate case.

    I agree that the Marks test just confuses things. Confusing things should be left to me.

    But based on the Marks test, I would say it’s pretty clear that the opinion of the SCOTUS in Albright was Justice Souter’s concurrence, which if I’m reading correctly said the case didn’t really present the due process issue the court dealt with in its plurality opinion. It would seem you couldn’t get much more “narrow” than an opinion that denies the issue is present in the first place.

  16. A concurrence (in a majority or plurality opinion) is very helpful for authors of future SCOTUS briefs. They provide great insight into a justice’s opinion on particular legal issues. In so doing, they provide a roadmap for brief writers to tailor their arguments so that a majority of the Court is willing to agree on a particular rule of law.

  17. Anon.,

    I am going to chicken out. Your question is specific (and sharp) enough that if I addressed it I fear that I might subsequently be required to recuse myself. Since I handle a lot of criminal cases, I decline to answer your good question. But, I can provide a hint about my tentative thinking. Take a look at Farmer v. Brennan, 511 U.S. 825 (1994) and the question of “deliberate indifference” in the context of subjective versus objective intent.

    All the best.


  18. This isn’t entirely correct, or fair, for a couple reasons. First, it just isn’t so that the Justices assume everyone understands Marks, because every time they write about it (in Nichols, or Grutter), they decline to apply it themselves and note that the lower courts find it baffling. Second, even the lower-court judges who are very familiar with the Marks test divide on what it means. The D.C. Circuit writes the best stuff on Marks, and they have one camp of judges that take a very orthodox view of Marks (i.e., ignoring dissents, is there an opinion whose grounds for the result are a logical subset of the other opinions in the majority), and another camp that believes Marks is about identifying a median view between concurring opinions and dissenters. A few weeks ago, Judge Kavanaugh wrote an opinion for a unanimous panel in which he claimed that Shady Grove couldn’t possibly contain a Marks rule because the dissenters failed to offer their view on the question the majority decided, rendering it impossible for him to determine, as between the various opinions that concurred in the judgment, which Justices stood in the middle of the Court. I suspect you’d say he’s being blatantly unfaithful to Marks, whereas I’d say his reading of Marks is arguable but wrong. But whatever the case, unorthodox readings of Marks are extremely common and will persist until the Court actually applies Marks to one of its precedents.

  19. In Williams, as I recall, Thomas’s opinion really wasn’t a logical subset of the plurality, nor was the plurality a subset of his. So, no Marks rule can be gleaned from Williams and Williams is binding only on its facts.

  20. Isn’t Thomas’s opinion that hearsay must be sufficiently formal before the declarant can be deemed a witness within the meaning of the confrontation clause narrower than (and subsumed within) the plurality’s much broader primary purpose test — a test that applies to both formal and informal hearsay?

  21. criminallawscholar,

    With true respect, that is a “bootstrap” justification. If more Justices would sublimate their personal agendas there need be no ambiguity for a concurrence to clarify.

    All the best.


  22. Assuming that – and this may not be right – it’s logically possible for some hearsay to be solemn enough to be testimonial for Thomas, but to not satisfy the plurality’s primary purpose test for what’s testimonial, then his opinion isn’t a logical subset of theirs, which is all that matters on a traditional reading of Marks. It may well be the case, of course, that as a factual matter there are no instances in which a statement could be solemn enough for Thomas but not satisfy the purpose test; it’s difficult to imagine real-world hearsay that’s both very solemn but isn’t primarily for the purpose of accusing someone. But if it’s theoretically possible, then I think there’s no Marks rule because a majority of the Court is not necessarily committed to the position that hearsay meeting Thomas’s test would violate the Confrontation Clause. (For some authority that Marks requires logical subsets, not just factual ones, see Stephen Williams’s concurring opinion in Duvall, 705 F.3d 479.)

  23. That makes no sense tmm. If the court lacks jurisdiction then in has no power to hear the case and if it has no power to hear the case then everything else is moot. What Bryer said, in effect, is that he thinks the court has no power to hear the case but that since that argument has been foreclosed to him as a practical matter he might as well join the majority. So what the left hand has given the right hand has taken away because jurisdictional questions always come /first/.

    So I don’t see any cogent way to claim that Breyer vote means /anything/ for precedential purposes.

  24. Er, WHAT? Brief writers tailoring the argument to the political leanings of the courts? What’s next? Politicians running campaigns to cater to half-assed, whoever-answered-the-phone, paid-for polling results? Oh, wait, nevermind…

    Haysus on a donkey, we are SO, SO screwed…

  25. Except the political question doctrine is not jurisdictional in the strict sense. The Supreme Court has the authority to decide the case (as it is a case or controversy) but it declines to exercise the authority because it believes that it is the type of issue that the Framers would have preferred that the courts leave to the other branches. So you have an opinion saying that we should not have taken this case, but — since we have — I agree with the opinion of the Court that the President has exclusive power over the recognition of countries and this law unconstitutionally invades that authority.

  26. I think the correct way to read Breyer’s opinion is that he thinks the case is nonjusticiable, but that he isn’t really voting for that view. If he were actually voting for nonjusticiability, he shouldn’t be concurring in the judgment affirming the D.C. Circuit, but rather dissenting and calling for a vacatur. Which he actually did in Zifotofsky I.

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