Deciding not to decide: a limited defense of the silent concurrence.

• Author: Platt, Alexander I.

1. Introduction

   Justice Alito wrote many separate opinions in his first decade on the Supreme Court, but one stands apart. It read, in its entirety, "Justice Alito concurs in the judgment." (1)

   This one-liner raised some eyebrows. (2) The unexplained vote is commonly understood to be the province of the legislator; judicial power is customarily exercised through reasoned, written opinions. (3)

   While the concurrence without opinion--or silent concurrence--is now rarely used on the Supreme Court, it remains a steady feature on the federal courts of appeals. (4) And yet, it is widely regarded as illegitimate. It has been criticized as "perplexing," (5) "an abomination," (6) "unnecessary," (7) "troubleprovoking," (8) and "condemnable," (9) accused of "thwartfing] the judicial process," (10) of offering "little value" (11) or none at all, (12) and condemned as a practice that "cannot be justified as appropriate judicial methodology," (13) and must be "eradicated" (14) or "abandoned]." (15)

   These attacks are overstated. Silent concurrences are a legitimate technique of "negative judicial agenda-setting." (16) As when a judge chooses not to reach every issue presented or to resolve a case with an unpublished disposition, the silent concurrence allows judges to decide not to decide, permitting reallocation of judicial time towards other cases that might improve the overall quality of decisionmaking. Critics are not wrong to point out problems with the silent concurrence, but these flaws are shared by other negative agenda-setting practices that are broadly regarded as legitimate. (17) The cost/benefit ratio is not apparently worse for silent concurrences than for these other practices. Calls for abolition, therefore, seem to be unjustified.

   This article draws on an original dataset of all silent concurrences in the federal courts of appeals from 1997 to 2014 (18) and proceeds in two parts. Part II reports on patterns of contemporary usage of silent concurrences. Part III argues that silent concurrences are a legitimate technique of negative judicial agenda-setting.

2. SILENT CONCURRENCES: AN OVERVIEW (19)

   Dissents and concurrences without opinion date back to the early Supreme Court, with the Marshall Court (1801-1835) recording forty-one separate opinions without opinion. (20) The practice became more prevalent, with the Taney Court (18361864) registering 389. (21) But, by the late twentieth century, the Court had moved away from the practice. Between 1986 and 1989, the Rehnquist Court produced just nine silent concurrences. (22) And by 2013 the silent concurrence had become rare enough that Justice Alito's use of the technique provoked a startled reaction. (23)

   Yet the practice lives on in the federal courts of appeals. Between 1997 and 2014, (24) an average of about twelve published cases per year (approximately 0.25 percent (25)) have included silent concurrences. (26) There is considerable circuit variation: The First Circuit never uses the silent concurrence; the Second, Third, and Seventh rarely do; and the Fifth and Eleventh use it most often. (27)

   Neither senior nor visiting judges use silent concurrences at a higher rate than active judges. (28) But the practices of individual judges vary widely. One judge on the D.C. Circuit is responsible for almost eighty percent of that court's silent concurrences. (29) In the Eleventh Circuit, one judge is responsible for sixty percent; and in the Second Circuit, fifty. (31)

   Judges can issue both "swing" and "non-swing" silent concurrences. (32) A swing silent concurrence provides a critical vote for the majority result (even as it withholds support for the opinion), while a non-swing silent concurrence is merely the third vote on a panel whose other two judges embrace the majority opinion in full. The overwhelming majority of silent concurrences in the federal courts of appeals are non-swing. (33)

3. SILENT CONCURRENCES AS JUDICIAL AGENDA-SETTING

   The quality of judicial decisionmaking is, in part, a function of judicial time: At least up to a certain point, the more time, the better the decision. But judicial time is a scarce resource. More time devoted to one case means less for another. (35) Difficult cases might well deserve more judicial time than easy ones, (36) but an hour spent further refining the prose of a well-worked opinion might be better spent screening for basic errors in other cases. (37)

   Though many key allocational issues are resolved by the other branches, (38) the federal appellate judiciary retains expansive negative agenda-setting power--that is, power to keep issues off the decisional menu. (39) In every appeal, judges must not only resolve the legal and factual issues presented, but also the antecedent question: which of the issues presented will be decided. This negative agenda-setting power allows judges to avoid expending time on a particular issue or case, preserving their time to be reallocated to other judicial work. (40)

   Appellate judges engage in negative agenda-setting through various practices and doctrines. (41) They frequently exercise discretion not to resolve every issue presented--a technique some refer to as "issue suppression." (42) Courts may choose to reach only those issues necessary to resolve the appeal and upon which they can secure a majority (or unanimity), even when this means leaving unaddressed other relevant and important issues that had been properly raised by the parties. (43) No formal doctrine or rule requires this, and it is often left unexplained.

   Another example of negative agenda-setting is judges' use of unpublished dispositions, which range from totally conclusory dispositions with no analysis to relatively elaborate (but still unprecedential) opinions. (44) The majority of cases in the federal courts of appeals are now resolved with unpublished orders, opinions, or dispositions, rather than published opinions. (45) And because judges typically devote substantially less time and effort to drafting and reviewing these unpublished dispositions than to drafting and reviewing their to-be-published opinions, (46) the decision to resolve a given case this way leaves judges with more time to spend elsewhere. (47)

   Like the decision not to reach every issue presented, the decision to resolve a case by unpublished order is almost never publicly explained. (48) Circuit rules seek to guide decisions about publication, (49) but these rules are malleable. (50) The typical unpublished disposition contains a bare citation to the rule authorizing non-publication, and no explanation as to how or why the case qualified for treatment under the rule.

   There are many other examples of negative judicial agenda-setting. Justiciability doctrines of standing, mootness, ripeness, political-question doctrine, and abstention allow courts to avoid resolving the merits of a dispute. (51) Waiver and forfeiture doctrines allow courts to avoid ruling on issues not adequately presented or preserved. (52) And judges may avoid definitive resolution of legal issues by deliberately drafting vague opinions that avoid stating clear rules to guide future cases. (53) Through these agenda-setting practices (and others (54)), appellate judges limit the time they spend on particular cases, creating pools of surplus time that can be drawn down elsewhere. (55)

   Silent concurrences ought to be evaluated alongside other instruments of negative judicial agenda-setting. A federal appellate judge with doubts about an opinion by a colleague (particularly an opinion that has already attracted a second vote (56)) may dispense with the otherwise time-consuming process of trying to resolve those doubts while drafting a concurring or dissenting opinion, and instead issue a silent concurrence. This leaves the doubting judge with surplus time to allocate to other opinions. (57)

   Statistical analysis of the dataset presented above--encompassing all silent concurrences in the federal courts of appeals from 1997 to 2014--is consistent with this view. Federal appellate judges are more likely to issue silent concurrences when they have more judicial work to attend to. (58) Higher average workload (59) by circuit correlates at a statistically significant level with the average rate of silent concurrences. (60)

   The D.C. Circuit is an outlier in this analysis, with the lowest workload figure, (62) but a moderately high level of silent concurrences. However, as discussed earlier, just one D.C. Circuit judge is responsible for eighty percent of that court's silent concurrences. (63) Removing this outlier judge from the calculation enhances the explanatory power of workload. (64) The Eleventh and Second Circuits also have judges who account for at least half of their silent concurrences. (65) Removing all three outlier judges from the calculation still yields a significant correlation between workload and silent concurrences. (66)

   The correlation between workload and silent concurrences is similar to the correlation between workload and the rate of unpublished opinions, which have been similarly justified as a technique to allocate scarce judicial time. (67) (Average workload by circuit is also positively correlated with the average rate of resolving cases via unpublished dispositions and opinions. (68))

   Thus, empirical evidence from the federal courts of appeals is consistent with the hypothesis that silent concurrences are used by judges as a negative agenda-setting technique. Judges with heavier demands on their time have greater need for timesaving devices like silent concurrences and unpublished dispositions, and make greater use of them.

   The lead criticism of silent concurrences is that they "produce [] instability in the law as lawyers, courts, and commentators attempt to evaluate the case's precedential value." (70) Critics argue that a silent concurrence "produces all the evils of a concurring opinion with none of its values" because it "casts doubt on the...