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.”

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