Justice Kavanaugh’s “Principal Concurrences”

On the Supreme Court, there’s a hierarchy for checklist critiques. The majority opinion all the time comes first. When the Court is fractured, and there’s no transparent majority, the opinion with probably the most enhance is normally indexed first. When the case is an absolute cluster, once in a while the opinion through the Justice with probably the most seniority is indexed first, however there may be some play within the joints. After the bulk/controlling opinion, the concurrences are indexed through seniority. Next come the contests in judgment simplest, which might be additionally indexed through seniority. Finally, the dissents are indexed, which might be once more looked after through seniority.

When there are a couple of dissents, the bulk opinion will seek advice from a specific dissent because the “principal dissent.” But the time period “principal concurrence” is way more uncommon. A snappy seek of Westlaw unearths just one such utilization earlier than 2021. Morrison v. National Australia Bank Ltd.(2010), Justice Scalia wrote the bulk opinion, Justice Breyer wrote an opinion concurring partially, and concurring in judgment, and Justice Stevens wrote an opinion concurring simplest in judgment. Justice Scalia referred to Justice Stevens’s opinion because the “principal concurrence.”

More not too long ago, the word “principal concurrence” has popped up two times. In Long v. California (2021), Justice Kagan wrote the bulk opinion, Justice Kavanaugh wrote a concurrence, Justice Thomas wrote an opinion concurring partially 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 because the “principal concurrence.”

And the day past, the courtroom determined Sackett v. EPA, Justice Alito wrote the bulk 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, once more, referred to Justice Kavanaugh’s separate writing because the “principal concurrence.” Kagan’s opinion, which had 3 votes, used to be indexed first, as a result of she has extra seniority, however Kavanaugh’s opinion had 4 votes. I guess the collection of votes makes it the “principal concurrence.”

In two instances, determined within the span of 2 years, Justice Kagan has referred to a Justice Kavanaugh concurrence because the “principal concurrence.” Nothing a lot to look right here, however I revel in monitoring those new nomenclature at the Court.

Finally, I’d be remiss if I didn’t indicate an glaring pun, given the truth that President Nixon signed the Clean Water Act: SCOTUS mentioned Sackett to me!

The Lemon take a look at used to be established in 1971, the Clean Water Act used to be handed in 1972, and Rowe used to be determined in 1973. The Nixon years don’t seem to be having a great time on the Supreme Court.