The wisdom of soft judicial power: Mr. Justice Powell, concurring.

• Author: Estreicher, Samuel
• Position: US Supreme Court Justice Lewis F. Powell Jr.

President Theodore Roosevelt believed in talking softly while carrying a big stick. (1) Justice Lewis F. Powell, Jr., who served on the Court from 1972 to 1987 after a distinguished career in private practice, also talked softy but wielded a great deal of influence without using a stick, and sometimes just by agreeing with the majority. Branzburg v. Hayes is perhaps the clearest example. Writing for a five-person majority (that included Powell), Justice Byron White refused to create a First Amendment privilege for newsmen, rejecting the argument that the burden on news gathering created by grand jury subpoena was sufficient to override the "public interest in law enforcement." (2) White thereby declined the opportunity to create a First Amendment privilege for newsmen seeking to shield their sources, a privilege not available to other citizens.

While joining the majority opinion, Justice Powell also penned a short separate concurrence to "emphasize ... the limited nature of the Court's holding." (3) Attempting to cabin the Court's opinion to the facts of the case, Powell proposed a case-by-case balancing test that would take into account the First Amendment interests as well as the public interest in ensuring truthful testimony during grand jury inquiries. Powell agreed with White that bad-faith prosecutions seeking information from the press would not be tolerated, but went further, stating that "the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection." (4)

Despite his having joined a majority opinion that seemingly rejected the creation of a First Amendment newsmen's privilege, Powell's separate opinion actually spurred recognition of a "qualified reporter's privilege" in many subsequent lower court cases. (5) Many of these courts reasoned that because Powell cast the "deciding" vote to create the majority, his analysis stands as that of the Court. (6)

True to his role as a vital center of the Court, Branzburg was not the only case where Justice Powell took steps to cast the majority opinion in a different, more restrained light. Indeed, Powell often preferred a short concurring opinion as the means of expressing his differences with a majority rationale. While many of his contemporaries may have preferred the clarity of a dissent, Powell sought both agreement and the benefits of signaling a potentially limiting rationale in future cases by simultaneously purporting to join the majority rationale, while often stating what he saw as the "limited nature" (7) of the holding, or why the Court was right in "this case." (8)

Embracing one's differences in a concurring opinion is certainly not the only way a Justice can approach those differences. Dissents are, of course, a good deal more common. A dissent can aim at two different goals. First, a Justice may dissent along the lines of Justice Harlan in Plessy v. Ferguson, noting that the Court had made a grave error in approving "separate but equal" laws and urging future decisionmakers to hold such laws inconsistent with the Constitution. (9) In this way, the Justice implores a future jurist or lawmaker to find that the decision of the day was wrong and that a different result should be reached. Harlan proved prescient by the time of Brown v. Board of Education. (10)

Second, a Justice may write a passionate dissent--a geshrei (11) of sorts--aimed at arousing public interest in the issue and hopefully spurring a popular response to the Court's seemingly obvious mistake. This can be done either for the purpose of securing congressional action, as may have been Justice Ginsburg's goal in Ledbetter v. Goodyear Tire & Rubber Co., (12) or to prompt constitutional amendment as Justice Iredell's words in Chisholm v. Georgia (13) led to the adoption of the Eleventh Amendment. Such opinions are often described as "passionate" and may be seen as "chastising" the majority for its decision on the particular issue. This approach cannot be used in every case of disagreement because its effect depends on the probability of securing a popular response and it requires a weighing of the costs of diminishing political capital with one's colleagues.

Typically, where a Justice joins the majority opinion, it is the majority, and not the concurring, opinion, that constitutes precedent for future decisions. Of course, where there is a rule there is an exception, and this rule is, well, no exception. Powell's concurrence in Branzburg is one example, but so, too, is Justice Robert Jackson's famous concurrence in The Steel Seizure Case, (14) or Justice Felix Frankfurter's concurrence in Brown v. Allen. (15) So naturally, this is not a new phenomenon--rare, perhaps, but certainly not new.

What is unusual about Justice Powell, however, is the frequency with which he utilized the approach. Over the 1975-1980 period, Powell wrote 91 concurring opinions. Of those concurring opinions, twelve, or roughly 13.2%, were invoked by later courts as stating the holding of the Court. Of his contemporary brethren, Powell had the largest number of concurrences, and the highest ratio of concurrences to dissents--evincing his clear preference for establishing his differences in a concurring opinion. (16)

The chart below shows the breakdown of Powell's preference for concurrence as compared with his peers:

Opinion and Voting Trends in the Supreme Court Terms 1975-1980 Opinions Written Of the Court Concurring Justice Dissent C/D ratio Total Blackman 81 87 73 1.192 241 Brennan 82 52 122 0.426 256 Burger 93 45 41 1.098 179 Douglas * 0 1 1 1.000 2 Marshall 84 30 108 0.278 222 Powell 9 91 74 1.230 254 Rehnquist 91 36 107 0.336 234 Stevens 76 72 124 0.581 272 Stewart 90 46 86 0.535 222 White 91 49 70 0.700 210 PerCuriam 84 ~ ~ ~ ~ Total 861 509 806 ~ 2176 Dissenting Joining Majority Votes W/o % Justice Opinion Mem. Total opinion joined Blackman 124 33 157 617 71.66% Brennan 282 63 345 464 53.89% Burger 16 5 21 795 92.33% Douglas * 2 1 3 ~ ~ Marshall 282 59 341 490 56.91% Powell 100 26 126 644 74.80% Rehnquist 101 66 267 558 64.81% Stevens 170 61 231 555 64.46% Stewart 155 34 189 626 72.71% White 124 32 156 656 76.19% PerCuriam ~ ~ ~ ~ ~ Total 1456 380 1836 ~ ~ * Justice Douglas retired due to illness on November 12, 1975. Because he cast a vote in only four cases during the 1975 Team, his statistics are ignored for purposes of comparison to Justice Powell during the 1975-1980 Terms. A Justice can either concur in both rationale and judgment with the majority, or just in the judgment, before they write separately. The concurrence rate mentioned above includes both categories. The more interesting instances are naturally where the Justice signs on to the majority opinion in both...