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

• Author: Nancy Maveety,Charles C. Turner,Lori Beth Way
• DOI: 10.1177/1065912908330345
• Published date: 01 September 2010
• Date: 01 September 2010
• Subject Matter: Articles

Political Research Quarterly

63(3) 627 –639

© 2010 University of Utah

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DOI: 10.1177/1065912908330345

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The Rise of the Choral Court: Use

of Concurrence in the Burger

and Rehnquist Courts

Nancy Maveety1, Charles C. Turner2, and Lori Beth Way2

Abstract

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.

Keywords

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

opines,

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

Email: nance@tulane.edu.

Charles C. Turner, Associate Professor of Political Science,

California State University, Chico;

Email: ccturner@csuchico.edu.

Lori Beth Way, Associate Professor of Political Science,

California State University, Chico

Email: lway@csuchico.edu.