In the current composition of the United States Supreme Court, Justice Brett Kavanaugh has fashioned a reputation as a significant contributor of concurring opinions, earning him the moniker as a potential “great concurrer” of the Roberts court. His distinctive jurisprudential style has implications for both the internal dynamics of the court and its public perception.
Historically, figures like Justice William Brennan and Justice John Marshall Harlan left indelible marks on the court through majority and dissenting opinions, respectively. Brennan’s adeptness in assembling majorities led to significant civil rights advancements, while Harlan, known as “The Great Dissenter”, penned opinions that would eventually resonate in future legal landscapes. Today, with Supreme Court justices frequently authoring individual opinions, concurring opinions like those posited by Kavanaugh have started to gain attention for their unique role (Yale Law Journal).
Justice Kavanaugh’s concurrences are typified by a trio of objectives. Firstly, he has indicated that such opinions serve as a gesture of respect towards the parties involved and the legal arguments they’ve advanced, as illustrated by his remarks during a visit to Catholic Law. Secondly, they aim to elucidate the court’s opinions for the public, demystifying the implications of decisions like Dobbs v. Jackson Women’s Health Organization. Thirdly, Kavanaugh’s concurrences often pave a path for his perspective on future legal battles, potentially setting groundwork for subsequent cases.
A prototypical example is Kavanaugh’s concurring opinion in Trump v. Barbara, a birthright citizenship case. He agreed with the majority that President Donald Trump’s executive order contravened a federal statute while aligning with dissenters on its constitutional interpretation, balancing respect with a nuanced take on potential legislative outcomes. Such middle-road approaches are often framed as attempts to maintain the court’s institutional legitimacy.
However, Kavanaugh’s strategy is not without its detractors. Some scholars critique the propensity of concurring opinions to obscure legal clarity. Professor Meg Penrose has contended that they can create “legal clutter,” whereas others argue that Kavanaugh’s opinions verge on advisory, stepping beyond the case’s bounds. Notably, Justice Sonia Sotomayor’s public criticism, albeit later retracted, pointed to the real-world consequences Kavanaugh may overlook, as seen in Noem v. Vasquez Perdomo.
Kavanaugh’s strategic leanings chair a stark contrast to Justice Clarence Thomas, known for his unwavering conservative stance. Both confirmed amid contentious hearings, Kavanaugh’s trajectory seems tailored to assert influence from a centrist position, reminiscent of his professional background as staff secretary under President George W. Bush and his clerkship under Justice Anthony Kennedy.
Kavanaugh’s concurring opinions thus reflect a duality—pushing for conservative shifts while attempting to temper potential backlash. Whether this strategy will bear fruit in preserving the court’s reputation or complicate its interpretational consistency remains to be seen. For additional insights on Kavanaugh’s role, refer to SCOTUSblog.