Writings Show Conservative Justices Differ Even When in Majority

An uptick in concurring opinions written by Supreme Court justices is evidence of divisions among the conservative majority, even as they agree on outcomes most of the time.

The justices penned more concurring opinions, 62, than majority ones, 59, this term, accounting for almost 40% of total decisions issued in argued cases, a Bloomberg Law analysis showed.

The high number of concurrences—three or more in eight cases—suggests conservatives are feeling freer to voice their own views in writing separately rather than just signing up with a majority. The increase also might signal that Chief Justice John Roberts has less control over opinion writing than when the court was split 5-4.

“More and more,” Gregory Cui, Supreme Court and appellate counsel for the MacArthur Justice Center, if an individual justice “would have handled something differently or has additional views or commentary that others did not share, the norm seems to be vocalizing them, rather than sticking to what the majority could agree to.”

They show “the inability to find consensus even among the subset of justices that forms the majority in a case,” Cui said.

Kimberly Robinson/Bloomberg Law

‘Clear Uptick’

Adam Feldman, of the blog Empirical SCOTUS, says there’s been “a clear uptick in concurrence percentages, especially in the past couple of terms.”

According to Feldman’s numbers, the percentage of total opinions that have been concurrences has fluctuated between 25% and 34% between 2017 and 2023. This term, concurring opinions came out to almost 40% of the total opinions issued in argued cases, Feldman said.

He pointed to cases like United States v. Rahimi , a Second Amendment dispute that had five concurring opinions and one dissent, that bump up the numbers significantly.

Many of those concurrences involved a debate regarding originalism, the method of constitutional interpretation embraced by conservatives that relies on history and tradition to interpret the federal Constitution.

Justice Amy Coney Barrett, for example, “wrote in several cases critiquing the majority’s version of originalism, even if she agreed with the outcome and employs originalism herself,” said Anastasia Boden, a senior attorney at the Pacific Legal Foundation.

Also Read: Barrett Beginning to Chart Own Path on Divided Supreme Court

But the number of concurrences doesn’t tell the whole story, said Cui.

“There are different kinds of concurrences,” Cui said. There are those that agree with the result but not the reasoning, those that agree with only part of the majority’s reasoning, and those that fully concur but want to highlight a different aspect of the case.

“Each kind of concurrence accomplishes something different,” Cul said.

That could be a sign that Roberts, the first among equals on the court, has less power and control than he did when the court was split 5-4 between liberals and conservatives, said Devi Rao, Supreme Court and appellate director at the MacArthur Justice Center.

Rao said Roberts “seems to be having a hard time exerting control over how opinions get written,” particularly what to say and what not to say.

If he’s in the majority, Roberts, as the most senior justice, gets to assign who will write the court’s opinion.

“Once the chief assigns the opinion out, the writing justice has a lot of power,” Rao said. “And they don’t need his vote to keep the coalition together anymore,” given that the conservatives hold a 6-3 majority on the court, “so his power in that regard is diminished.”

‘Way Up’

Boden said that even while the court feels more divided than ever, unanimous cases were on par or higher than recent terms.

The percentage of unanimous rulings since 2017 has varied between a low of 26% to a high of 46%, which was the percent this term and last.

Moreover, Boden notes that several of the court’s unanimous or near unanimous opinions were in hot-button cases. Those included cases on former President Donald Trump’s eligibility for the presidency, access to the abortion drug Mifepristone, and the scope of gun rights.

“So not only was there a high number of unanimous or near-unanimous opinions, that unanimity came in the context of controversial topics,” Boden said.

But Feldman said that while this term’s unanimity was on par with last term’s, “ideological splits were way up.”

The justices 59 decisions in argued cases during the just-completed term.

Graphic: David Evans/Bloomberg Law

Last term, the percent of cases that split the justices along ideological lines was 9%, according to Feldman. This year it was 19%.

He said the difference could reflect the fact that there seemed to be more major cases than in past terms. Among the 11 cases that split the justices along liberal and conservative lines were the case granting Trump broad immunity from criminal prosecution, the one on gun rights striking down the Trump-era ban on bump stocks, and another overturning a 40-year-old administrative law doctrine known as Chevron deference.

Five of the other 11 cases that split 6-3 involved unique coalitions, where either Justices Neil Gorsuch or Barrett joined one or more liberal justices. Only six of the 6-3 decisions saw all conservatives in the dissent.

Boden acknowledged that the number of ideologically split cases almost doubled from last term. But she said “they represent a small portion of cases overall.”

“Looking past the numbers into substance, the court is less fractured ideologically than most people assume,” Boden said.

Number v. Substance

All three liberal justices, however, were in the majority the least during this term. The court’s newest justice, Ketanji Brown Jackson was in the majority 73%, while her colleagues Sonia Sotomayor and Elena Kagan came in at 71%.

At the top were Roberts, Barrett, and Brett Kavanaugh. The percent for them was 97%, 92%, and 95%, respectively.

Graphic: Cordelia Gaffney/Bloomberg Law: Photos: Getty Images

Feldman said that’s been the norm in recent terms. “Since Barrett joined the court, Barrett, Roberts, and Kavanaugh have been the top three most frequent in the majority” he said.

“But what’s more interesting is who the justices are most likely to vote with or whether they agree with reasoning,” Boden said. Historically, Kavanaugh has been just as likely to vote with Kagan and as with Justice Samuel Alito, she said. And she noted that while Barrett was in the majority a lot this term, she “sometimes disagreed in important ways with how the majority got there.”