The Volokh Conspiracy

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Why Does Justice Kavanaugh Write Concurrences?

And if only we could gaze upon his book of never-published opinions.


On Monday, Justice Kavanaugh spoke at Notre Dame Law School. I've transcribed his remarks. At the 38:20 mark, Dean Cole asked, somewhat in jest, if NCAA v. Alston would extend to law review editors.

Dean Cole: So since you're using sports analogies, next question is, do you think your concurrence in NCAA versus Alston could cover fields and bodies beyond college football, for example, like law journals, or the Notre Dame Law Review?

Kavanaugh, as he is wont to do, went far beyond the question presented. Indeed, that was precisely what he did in his NCAA v. Alston concurrence: go beyond the question presented to resolve the legality of other NCAA compensation rules. And Justice Kavanaugh explained why he decided to address questions that were not presented. Here is his answer, which lasts about two minutes.

Justice Kavanaugh: Definitely, you know, and I can I can't even understand the question. I will say, NCAA versus Alston. If you asked me, you know, you've been on the court four years. What's your favorite opinion? The opinion you think, you know, you'd like the most it's it would be no surprise that NCAA versus Alston, my concurrence, and that would be right at the top of my list, probably also with Flowers versus Mississippi majority opinion. Ramos versus Louisiana concurrences are the ones that I look back on so far, and say, you know, I think I think I made a contribution with those cases. And I think I did a reasonably decent job. In those cases, the concurrence and NCAA versus Alston. I thought it was important to say because I was concerned, it's probably be a question, but why do you write concurrences? I always ask myself the same question. Is this really worth it? And I've come on, I've got a good book of unpublished opinions sitting out there that I've never thought–that I've thrown away as not being worth it. That one I thought it was worth it because I thought there was a risk that you could read the majority opinion and think, "Well, everything else is hunky dory." And I did not think that, in terms of the restrictions on student athletes, and I thought that needed to be said, and I thought it needed to be said clearly and directly and succinctly and I spent a lot, it's five pages, but put a lot of time into the into exactly how to phrase the things they are. And I just thought, you know, when a group of organizations is coming together and making a lot of money and agreeing to suppress the money that goes to the people, who are the actual athletes generating all the money, many of whom are from low income families, many of whom are African American, that there's something really quite wrong with that picture, both legally and otherwise. And I thought it was important to say that in in the NCAA case.

I found this aside to be the most revealing aspect of the entire interview.

First, Kavanaugh says outright that NCAA v. Alston was his favorite opinion. I've long suspected this was his favorite opinion. We know he loves sports. And he loves antitrust law. And he was able to remedy what he saw as an injustice. It is a perfect blend for Kavanaugh.

Second, Kavanaugh questions internally whether a concurrence is "worth it." Why was his Alston concurrence "worth it"? Here, he says there was a risk that Justice Gorsuch's majority opinion could be interpreted too narrowly. Well, in his concurrence, he framed things a bit differently:

But this case involves only a narrow subset of the NCAA's compensation rules—namely, the rules restricting the education-related benefits that student athletes may receive, such as post-eligibility scholarships at graduate or vocational schools. The rest of the NCAA's compensation rules are not at issue here and therefore remain on the books. Those remaining compensation rules generally restrict student athletes from receiving compensation or benefits from their colleges for playing sports. And those rules have also historically restricted student athletes from receiving money from endorsement deals and the like. I add this concurring opinion to underscore that the NCAA's remaining compensation rules also raise serious questions under the antitrust laws. Three points warrant emphasis.

The concurrence then proceeded to explain why the NCCA would "lack such a justification" for its "remaining compensation rules." Kavanaugh did not simply express concerns about Gorsuch's opinion could be read to support the other rules. Rather, Kavanaugh reached out to decide the legality of these other rules. These rules were not presented in this case. I see nothing restrained or minimalist about this approach.

Third, why did Kavanaugh think it was "worth it" to decide questions that were not presented in Alston? Because he almost always does! His separate writings routinely decide questions not presented, most recently in Dobbs and Bruen. These concurrences, in my view, were not "worth it."

Fourth, we learn that Justice Kavanaugh may actually have a "a good book of unpublished opinions" that he never published. This is a smart practice. Believe it or not, I write lots of blog posts for which I never hit the "publish" button. I write lots of emails I never send. I often tear apart early drafts of my articles and briefs, to remove lines I know I'll regret. Some of the writings that I am most proud of are things you will never, ever see. If only the Bruen and Dobbs concurrences made it to the burn book.

Finally, I'm not so sure that Kavanaugh's opinion will actually help the overwhelming majority of student athletes. A recent profile in the New York Times Magazine suggests that the name-image-likeness deals (NIL) will predominantly benefit top basketball and football players. Now, boosters, who would otherwise donate money to schools, will give the money directly to the bluechip players through NIL deals. As a result, athletic departments will receive less money. And athletes on virtually all other sports will lose funding. How will the universities make up that shortfall? Look to another Supreme Court case, NCAA v. Murphy, which paved the way for online gambling. Now, casinos are working hand-in-hand with athletic departments to hook young, impressionable minds on gambling apps. I'll admit, I am not comfortable with the sudden shift towards facilitating an addiction that can destroy lives.