The Era of the Choral Court

Article excerpt

One of the least noted aspects of the Rehnquist era was the Court's propensity for judicial chorality: the issuance of separate concurring opinions, often including joiners, that bracket the opinion of the Court. This development, and its implications for the institution's decisions and decision-making practices, is potentially the most significant of any legacy that the Rehnquist Court leaves as its place in history.

The rising number of separate opinions and the decline of unanimity as an intra-court norm did not begin under the Rehnquist Court, but during this era the practice of writing concurrences became a regularized, if not institutionalized, part of the judicial process. Rehnquist's was truly "the choral court," under which doctrinal rules and policy outcomes were less the result of majority opinion directives than interpretation of those directives by concurring justices. A chorus of judicial voices-not necessarily singing in harmony-made the Court's rulings. Single-authored majority opinions speaking for the Court, and unadorned by concurring commentary, became less frequent, particularly in constitutional decisions.

How this happened, why it happened with the mix of justices who served on the Rehnquist Court, and what the trend means, both for constitutional law and the Supreme Court's constitutional role, require some discussion of the logic of concurring opinions and the appeal of their use.

Why concurrence?

Unlike dissent, which is viewed as a cherished part of the common law tradition, concurrence receives a less warm reception from scholars and jurists alike. Not only is it more destructive of institutional integrity and more invidious with respect to legal clarity, it seems difficult to understand as anything other than judicial egoism. Why undermine the policy voice of a majority one supports by filing a concurrence, unless one is incorrigibly persnickety?

While fustice Ruth Bader Ginsburg's critical view of such separate opinions is wellknown in her off-the-bench writings', other Rehnquist Court justices present more nuanced or fully positive opinions of the practice of concurrence. Justice Antonin Scalia, not surprisingly, is candid in his contrarian praise of "be [ing] able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less differing views of one's colleagues...[as] an unparalleled pleasure."'

Both Justices John Paul Stevens and Sandra Day O'Connor, on the other hand, suggest a more instrumental purpose to the writing of concurring opinions. To Stevens, they are required due to a "great institutional interest in the forthrightness of different justices' views." To O'Connor, unanimity, and the pressure to join an opinion with which one does not fully agree, "does not overwhelm our other goals."3 What this "institutional interest" in the state of the Court's collective mind, or these "other goals," might be is answered, again by Justice Scalia, who observes that the Supreme Court's position "in the forefront of intellectual development of the law" means that the Court "is center stage for significant legal debate."

Political scientists who study law and courts generally eschew such judicial rationalizations in favor of a simpler explanation of concurring behavior: as a vote indicative of a less strongly-held ideological policy preference by a member of the majority coalition. Yet even these scholars admit that they have no good explanation for the increase in concurring opinions, in proportion to dissenting opinions, from the Burger to the Rehnquist Court. "Is there something about conservatives," one study muses, "that causes them to haggle about the details of opinions that support conservatively decided outcomes?"1 Apparently there is.

Scholars of the Supreme Court who take a more historical view argue that concurrence on the Rehnquist Court was a product of both judicial role orientations and political ideology. …