Disagreement on the Rehnquist Court

• Date: 01 May 2006
• DOI: 10.1177/1532673X05281482
• Published date: 01 May 2006
• Subject Matter: Articles

10.1177/1532673X05281482American Politics ResearchWay, Turner / Supreme Court Dynamics

Disagreement on the

Rehnquist Court

The Dynamics of Supreme Court Concurrence

Lori Beth Way

Charles C. Turner

California State University, Chico

Scholarship on Supreme Court opinions has tended to focus on outcomes and

majority opinions. This research examines the themes of justices’ concur-

rences. The authors first ask what goals are repeatedly pursued in concur-

rences? The authors suggest that concurrences pursue at least one of the fol-

lowing activities: ground laying, weakening, signaling, or preserving. After

establishing this typology of concurring behavior, the authors next ask, under

what conditions do justices illustrate these behaviors? The authors code the

547 concurrences written by Rehnquist Court justices between the 1991 and

2001-2002 terms and hypothesize that a number of institutional and attitudinal

variables may contributeto variation in concurring behavior. Applying logistic

regression, the authors conclude that several factors, most notably citations to

previous cases, the number of justices joining the concurrence, judicial ideol-

ogy, workload, and the extent to which the author joins the majority opinion,

are important predictors and correlates of the content of concurrences.

Keywords: Rehnquist Court; federal judiciary; judicial behavior; U.S.

Supreme Court; concurring opinions; Supreme Court justices

In the case of Lawrence v.Texas (2003), six members of the Supreme Court

agreed that the statute at issue, a sodomy prohibition, was unconstitu-

tional. However, only five of the members of the Court signed on to the

majority opinion whereas the sixth justice, O’Connor, fundamentally dis-

agreed with much of the majority opinion. For example, she revealed in her

concurrence that she did not believe that the controversial decision of Bowers

293

American Politics Research

Volume 34 Number 3

May 2006 293-318

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Authors’Note: Wewould like to thank the anonymous reviewersfor their helpful comments and

Erin Volkand April Roberts for their research assistance. We wouldalso like to thank Tim John-

son, David Klein, and Nancy Maveetyfor their insightsand suggestions. The two authors con-

tributed equally to this project.

v. Hardwick(1986) needed to be overruled. Instead, she argued, Lawrence v.

Texas could be distinguished from Bowers. Furthermore, Justice O’Connor

contended that the Court should declare the statute a violation of the Equal

Protection Clause of the Fourteenth Amendment rather than “relying on the

substantive component of the FourteenthAmendment’s Due Process Clause.”

(Lawrence v.Texas,2003). The content of opinions like this indicates that con-

currences may be full of political and legal implications, though they are

often overlooked by researchers and Court watchers.Dissents have tradition-

ally been the anticipated sites for indications of importantjurisprudential dis-

agreements; concurrences, though (and perhaps increasingly), are also quite

frequently opinions that detail serious doctrinal differences with the majority

opinion or serve other, perhaps political, purposes. This role and past inatten-

tion makes the content of concurrences ripe for study by political scientists.

In addition, the growth in the number of separate opinions over time suggests

a need for scholarly attentiveness; there were, for example, 10 times more

concurring opinions written in the 1980s than there were in the 1940s (“Con-

curring Opinions,” 2002).

Our goal here is to begin to account for the themes or patterns of concur-

rences. Specifically, we revealpatterns in concurring behavior by categoriz-

ing these opinions according to four broad themes that we outline in detail

below: ground laying, weakening, signaling, and preserving. The questions

we explore include (a) What goals are demonstrated in concurring opinions?

(b) Do justices attempt to lay legal foundations for future cases? (c) Do con-

currences send messages to potential litigants or other politicalactors regard-

ing which cases to pursue? (d) Do concurrences merely note justices’unique

perspectives?and (e) Do justices reveal institutional and political concerns in

separate opinions?1

Although statistical compilations of opinions, including separate ones,

are available (see Spaeth, 2003), little systematic work has been done to

explore the significance of concurring opinions. There is general agreement

regarding what majority opinions accomplish—they create, change, and/or

clarify the law. However, scholarly understanding of what is achieved (or

not) in concurrences is far less developed. To be sure, the team of Wahlbeck,

Spriggs, and Maltzman (1999) has done a particularly good job of discussing

when, and perhaps why, justices concur or dissent.2For example, Wahlbeck

et al. found that Burger Court justices were less likely to concur when they

were ideologically close to the majority opinion writer, when they frequently

sided with the majority opinion writer, and when the end of the term was

near.Although scholars are beginning to reveal when concurrences are likely

to be written, still absent is a discussion of what justices are writing about in

294 American Politics Research