The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Kavanaugh's "Principal Concurrences"
On the Supreme Court, there is a hierarchy for listing opinions. The majority opinion always comes first. When the Court is fractured, and there is no clear majority, the opinion with the most support is usually listed first. When the case is an absolute cluster, sometimes the opinion by the Justice with the most seniority is listed first, but there is some play in the joints. After the majority/controlling opinion, the concurrences are listed by seniority. Next come the concurrences in judgment only, which are also listed by seniority. Finally, the dissents are listed, which again are sorted by seniority.
When there are multiple dissents, the majority opinion will refer to a particular dissent as the "principal dissent." But the term "principal concurrence" is far more rare. A quick search of Westlaw reveals only one such usage before 2021. In Morrison v. National Australia Bank Ltd.(2010), Justice Scalia wrote the majority opinion, Justice Breyer wrote an opinion concurring in part, and concurring in judgment, and Justice Stevens wrote an opinion concurring only in judgment. Justice Scalia referred to Justice Stevens's opinion as the "principal concurrence."
More recently, the phrase "principal concurrence" has popped up twice. In Lange v. California (2021), Justice Kagan wrote the majority opinion, Justice Kavanaugh wrote a concurrence, Justice Thomas wrote an opinion concurring in part and concurring in judgment, and Chief Justice Roberts wrote an opinion concurring in judgment. Justice Kagan's majority opinion referred to Justice Kavanaugh's opinion as the "principal concurrence."
And yesterday, the Court decided Sackett v. EPA. Justice Alito wrote the majority opinion, Justice Thomas wrote a concurring opinion, Justice Kagan wrote a concurrence in judgment, and Justice Kavanaugh wrote a concurrence in judgment. Justice Kagan's dissent, again, referred to Justice Kavanaugh's separate writing as the "principal concurrence." Kagan's opinion, which had three votes, was listed first, because she has more seniority, but Kavanaugh's opinion had four votes. I suppose the number of votes makes it the "principal concurrence."
In two cases, decided in the span of two years Justice Kagan has referred to a Justice Kavanaugh concurrence as the "principal concurrence." Nothing much to see here, but I enjoy tracking these new nomenclatures on the Court.
Finally, I would be remiss if I did not point out an obvious pun, given the fact that President Nixon signed the Clean Water Act: SCOTUS said Sackett to me!
The Lemon test was established in 1971, the Clean Water Act was passed in 1972, and Roe was decided in 1973. The Nixon years are not having a good time at the Supreme Court.
