Judge Kavanaugh’s “Major Concurrences”

In the Supreme Court, there is a hierarchy for listing opinions. The opinion of the majority always comes first. When the Court is fractured and there is no clear majority, the opinion with the most support usually comes first. When the case is an absolute conglomerate, sometimes the opinion of the oldest Judge is listed first, but there is some set of circumstances. After the majority/control opinion, the concurrences are listed by seniority. Then come the concurrences in a single trial, which are also listed by seniority. Finally, the dissidents are listed, again ordered by seniority.

When there are multiple dissents, the majority opinion will refer to a particular dissent as the “main dissent.” But the term “main concurrency” is much rarer. A quick search of Westlaw reveals just one such use 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 at trial, and Justice Stevens wrote an opinion concurring only at trial. Justice Scalia referred to Justice Stevens’ opinion as the “principal concurrence”.

More recently, the phrase “main concurrency” has appeared twice. In Lange v. California (2021), Justice Kagan wrote the majority opinion, Justice Kavanaugh wrote a concurring opinion, Justice Thomas wrote a concurring opinion in part and at trial, and Chief Justice Roberts wrote a concurring opinion at trial. The majority opinion of Justice Kagan referred to the opinion of Justice Kavanaugh 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 concurring judgment, and Justice Kavanaugh wrote a concurring judgment. Justice Kagan’s dissent, again, referred to Justice Kavanaugh’s separate brief as the “principal concurrence.” Kagan’s opinion, which had three votes, was listed first because it is older, but Kavanaugh’s opinion had four votes. I guess the number of votes makes it the “top turnout”.

In two cases, decided within the span of two years, Judge Kagan referred to Judge Kavanaugh’s concurrence as the “principal concurrence”. There’s not much to see here, but I enjoy tracking these new nomenclatures on the court.

Finally, I would be remiss if I didn’t point out an obvious pun, given that President Nixon signed the Clean Water Act: Scotus said Sacket for me!

He Lemon was established in 1971, the Clean Water Act was passed in 1972, and Roe it was decided in 1973. The Nixon years are not going well on the Supreme Court.