The Rise of the Choral Court: Use of Concurrence in the Burger and Rehnquist Courts

AuthorNancy Maveety,Charles C. Turner,Lori Beth Way
Published date01 September 2010
Date01 September 2010
Subject MatterArticles
Political Research Quarterly
63(3) 627 –639
© 2010 University of Utah
Reprints and permission:
DOI: 10.1177/1065912908330345
The Rise of the Choral Court: Use
of Concurrence in the Burger
and Rehnquist Courts
Nancy Maveety1, Charles C. Turner2, and Lori Beth Way2
Justices’ goals when writing concurrences continue to elude scholars. This project extends Baum’s contention that
justices’ goals are bifurcated. The authors argue that justices use concurrences as means to both speak about their legal
policy preferences and win by being members of the majority voting coalition. An analysis of the Burger and Rehnquist
Courts’ concurring behavior illustrates that members of the Court are both authoring and joining concurrences in
ways previously undocumented. Specifically, justices have become comfortable not only authoring concurrences but
regularly joining others’ separate opinions as well—a trend the authors call choral-Court decision making.
law, courts, constitutional law, jurisprudence
Speaking and winning are competing objectives for the
justices of the modern Supreme Court. According to the
finding of a recent empirical study, “some Justices prefer
victory more than others and are willing to accommodate
their colleagues on finer legal points in order to magnify
their voting power” (Edelman and Chen 2001, 212). Yet
winning—authoring or joining the opinion of the Court—
is usually a costly endeavor, involving compromise as to
policy or doctrinal rule making. Separate opinion writing,
on the other hand, bypasses such costs through individu-
alized speaking. As one member of the Rehnquist Court
To be able to write an opinion solely for oneself,
without the need to accommodate, to any degree
whatever, the more-or-less differing views of one’s
colleagues; to address precisely the points of law
that one considers important and no others . . . that
is indeed an unparalleled pleasure. (Scalia 1994, 42;
emphasis added)
Judicial scholar Lawrence Baum chose this quote from
Justice Scalia for his discussion of law and policy making
on the Supreme Court, to illustrate the “satisfaction”
judges derive “from expressing their preferences directly”
(Baum 1997, 98)—or, in the parlance of some political
scientists, from “voting sincerely.” However one chooses
to categorize the “pleasure” of which Scalia speaks, his
statement encapsulates the attraction of separate opinion
writing on an institution that traditionally speaks through
an opinion for the Court. Likewise, while now-retired
Justice O’Connor’s recent book (2003) waxes eloquent
about the Taft Court’s achievement of unanimity, she
distinguishes it from the Court on which she served:
Unlike the Justices of the Taft Court, neither my
colleagues nor I make a practice of joining opin-
ions with which we do not agree. While unanimity
is most certainly a goal of the present-day Court, it
does not overwhelm our other goals. (O’Connor
2003, 118; emphasis added)
What are these “other goals,” or behavioral motivations?
Justice Stevens provides a clue, in a statement from an
interview with judicial scholar David O’Brien, when he
observes that concurring opinions are required because of
“greater institutional interest in the forthrightness of
1Tulane University
2California State University, Chico
Corresponding Authors:
Nancy Maveety, Professor of Political Science, Tulane University
Charles C. Turner, Associate Professor of Political Science,
California State University, Chico;
Lori Beth Way, Associate Professor of Political Science,
California State University, Chico

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