Concurrence and the Study of Judicial Behavior in American Political Science

• Author: Nancy Maveety
• Pages: 173-185

Nancy Maveety

Concurrence and the Study of Judicial Behavior in American Political Science

To be able to write an opinion solely for oneself, without the need to accommodate [emphasis added], to any degree whatever, the more-or-less differing views of one's colleagues; to address precisely the points of law that one considers important and no others; [...] that is indeed an unparalleled pleasure.

1. Scalia. The Dissenting Opinion. - Journal of Supreme Court History, 1994, p. 42.

It is telling that in his chapter "Strategic Behavior" from "The Puzzle of Judicial Behavior", law and courts scholar Lawrence Baum chose this excerpt by U.S. Supreme Court Justice AntoninScalia to indicate the "satisfaction" judges derive "from expressing their preferences directly" - or, in the parlance of some judicial scholars informed by game theoretic accounts of politics, from "voting sincerely"². However one chooses to categorize the "pleasure" of which Scalia speaks, his quote and Baum's use of it suggest a need to account for the behavioral motivations behind separate opinion writing on a judicial institution where the tradition is one of an opinion for the court.

Of separate opinions on the U.S. Supreme Court, dissenting opinions are intuitively easier to understand and, therefore, to explain than concurring opinions³. "Dissent", as Murphy, Pritchett and Epstein remark in the fifth edition of "Courts, Judges and Politics", "is a cherished part of the common-law tradition"⁴. Dissenting opinions - and the judicial disagreement over the meaning of the law that they register - are not only an important facet of common law legal systems, they are also fully understandable and, therefore, explainable, in terms of the legal factors identified by a legal model of judicial decision making⁵. Moreover, dissenting opinions are equally understandable and, therefore, explainable in terms of political scientists' policy-oriented and (designedly) explanatory models of judicial behavior, wherein judges' votes and opinions express policy preferences, institutional goals, or some strategic mixture of the two.

All of the above is much less apparent with respect to concurring opinions, and concurring behavior generally. Concurrence still retains something of a taint to it - that it is somehow more destructive of judicial or judicial institutional integrity, more invidious with respect to legal clarity, less cooperative and more persnickety than dissent⁶. It is less "a cherished part" of the common-law tradition than simply a part (in the post-seriatim opinion era); concurring opinions, unlike dissents, also have the potential to rob the opinion of the court - and its holding regarding "the law" - of its majoritarian, "courtly" force⁷. It is thus not surprising that sitting judges, including Scalia's colleague Justice Ruth Bader Ginsburg, write critically of the practice of concurring opinion writing - Scalia's juridical "pleasure" in not "need[ing] to accommodate" notwithstanding⁸.

The concurring vote is also notoriously difficult to understand and, therefore, to explain in terms of American political science's dominant, policy-oriented models of judicial behavior. The attitudinal model, which generally eschews the importance of opinions' doctrinal content, accommodates concurrence mainly as an indication of a less strongly-held ideological preference by members of a majority vote coalition. Yet this is, to some degree, an unsatisfying account, even for attitudinalists. An amusing illustration of this is found in the first edition of Segal and Spaeth's "The Supreme Court and the Attitudinal Model", where the authors admit that they have no good (attitudinal) explanation for the increase in proportion of concurring (special) opinions at the expense of dissents, from the Burger to the Rehnquist Courts. "Is there something about judicial conservatives," they muse, "that causes them to haggle about the details of opinions that support conservatively decided outcomes?"⁹Other approaches seem to fare no better. Strategic approaches to judicial decision making, where judicial behavior is a collegial game of crafting law, understand concurring opinions as part of the majority opinion-coalition formation process. But they, too, ultimately concede that "it is exceedingly difficult to capture the richness and complexity of justices' responses to majority opinion authors in any single model."¹⁰ Some Separation-of-Powers, game theoretic models of judicial decision making attempt to incorporate judicial choice of legal doctrine (what these models call "strategically sincere" behavior) into their understanding of judicial behavior, but their measures of legal doctrine are to date insufficiently sensitive to the substantive choice differences which frequently distinguish a concurring opinion from an opinion of the court¹¹. Historical institutionalist accounts of judicial decision making can offer richer descriptions of concurrence as a part of judicial action within macro-level regime politics, but are somewhat unsystematic in explaining the occurrence of this type of separate opinion-writing¹².

Thus far, policy-oriented models of judicial behavior explain concurring opinions by falling back on "institutional norms" accounts¹³, tracing "consensual norms" and their impact¹⁴, or evoking "reaching principled decisions" as part of the mix of institutionally-constrained policy goals which animate judicial action¹⁵. In other words, the phenomenon of concurrence seems to be an important nexus point between legal, policy preference, and new institutionalist understandings of judicial behavior. Therefore, to examine how dominant models of the judicial process in American political science explain (or could explain) this phenomenon should aid judicial scholars in fashioning constructive critiques of these models and, ultimately, in developing a model which offers a satisfying account of judicial voting and opinion-writing behavior in the multi-member appellate court context, and across comparative court contexts.

This article will examine how concurring opinion-writing on the modern U.S. Supreme Court has been explained by the dominant, American political science models of the study of judicial behavior, and assess how the increased incidence of concurrence on the contemporary court has affected (1) the construction and evolution of these models and (2) the discussion within the law and courts field of American political science as to the generation of a unified model of judicial decision making¹⁶. A glib (and somewhat testy) subtitle for this article might be, can the study of judicial behavior adequately explain concurrence and if not, then why not.

1. Explaining (concurrence as) judicial disagreement

If legal principles guide judicial decision making, why do explanations of judicial decision making which rely on legal factors fare so poorly in accounting for/predicting judicial disagreement? Legalistic explanations of judicial behavior at times function best as post hoc accounts for judicial opinions, and a legal factor-based explanation of judging is of limited utility in explaining why certain judges are or are not moved by certain legal considerations in specific situations. These deficiencies in what has come to be called the legal model of judicial decision making were in part responsible for the rise of a political science of judicial process studies; the latter emphasized the predictive explanation of the judicial vote as the key to understanding judicial behavior¹⁷.

The emphasis on the judicial vote as that which must be explained, coupled with a diminished respect for legal variables in that explanation, led U.S. judicial behavior scholars of the 1960s to focus on judicial disagreement as the most interesting and salient phenomenon of the newly-characterized "judicial process". Factors or independent variables most relevant to explaining this disagreement, judicial dissensus, took pride of place in the policy-oriented models of judicial decision making that would come to dominate the American political science of law and courts from the 1970s onward. These factors were, of course, judicial policy preferences. Reliance on judicial policy preferences as determinative of judicial decision making was arguably a context-bound assumption: in the U.S. case, judicial partisan identity is known, and is frequently a surrogate measure of judicial ideology or policy preferences, and has long been a factor in the selection of federal judicial nominees by U.S. presidents and the confirmation of those nominees by the U.S. Senate¹⁸. Judicial partisan identity is neither known in some non-U.S. court contexts, nor is it a factor in the selection of judges in many non-U.S. court contexts, nor can it be assumed to be related to judicial decision making without corroborating evidence correlating it (or some surrogate measure of judicial ideology) with patterns of that decision making¹⁹.

Studies of the U.S. Supreme Court during the early period of judicial attitudinalism employed bloc analysis to account for patterns of agreement and disagreement in judicial voting²⁰. In a sense, then, their behavioral approaches were concerned with the factors which account for judicial consensus and dissensus. But the stress was always on non-unanimous decisions and on the factors explaining voting differences on multimember courts. Glendon Schubert's phrasing of the judicial behavioralist project, in his introduction to a 1963 volume, is indicative: political scientists of the judiciary "agree that the sets of judges who comprise the bench of relatively large...