Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation

Category: Forum

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation

Meg Penrose

Volume 31

31 GEO. MASON L. REV. F. 65 (2023)

Good judges are clear writers. And clear writers avoid legal clutter.¹ Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed to garner support from the rest of the Court. They are cries for attention that are, usually, better left unwritten. Concurring opinions are legal clutter.

This essay challenges judges—particularly Supreme Court Justices—to refrain from subjecting lawyers and law students to legal clutter. Court opinions are already too long.² They can be complex. Distracting readers from the actual holding of a case causes unnecessary confusion, even for other judges. Two recent examples, Justice Kavanaugh’s individual concurrence in NCAA v. Alston³141 S. Ct. 2141, 2166 (2021) (Kavanaugh, J. concurring). and Justice Thomas’s individual concurrence in Dobbs v. Jackson Women’s Health Organization,⁴ illustrate the problem. Journalists and lawyers, eager to see systematic change at the NCAA, have latched on to one sentence in Justice Kavanaugh’s Alston concurrence—repeating lines that are neither the Court’s holding nor controlling.⁵ Similarly, Justice Thomas’s solo concurrence in Dobbs suggesting the entire line of substantive due process cases should be overturned, left some wondering if overturning Roe was just the beginning of a stare decisis regression.⁶ Worse still, both Justice Kavanaugh and Thomas seemingly invite new litigation to ensure that their individual viewpoints ultimately become the law.⁷ This is the danger of concurring opinions. Below the surface, many concurring opinions are nothing more than a latent form of judicial activism.⁸ On the surface they are mere legal clutter.

The Roberts Court has become a court filled with individual opinion writers.⁹ During the 2020-2021 Term, the Court issued a mere fifty-seven signed opinions.¹⁰ This low productivity appears to be the new normal for the Supreme Court.¹¹ While previous Courts regularly issued hundreds of opinions each Term,¹² the Roberts Court has averaged less than sixty-eight signed opinions for the past decade.¹³ These same Justices have no problem drafting concurring opinions, averaging forty-two concurring opinions per Term during this same period.¹⁴ The Justices most likely to draft concurrences are Justices Thomas, Kavanaugh, and Alito.¹⁵ Thus, a Court with an ideologically conservative 6–3 majority voluntarily chooses to muddy the legal waters by having half its majority-leaning Justices regularly publish individual concurring opinions.

The Roberts Court claims to be collegial.¹⁶ Its opinion writing is not.¹⁷ Dobbs, one of the longest opinions in nearly eighty years, spanned two hundred pages.¹⁸ There were five separate opinions.¹⁹ Three of these five opinions were concurrences.²⁰ All three concurrences were written by an individual Justice with no other Justice signing on.²¹ These three concurrences span thirty-one pages.²² To put this in perspective, Brown v. Board of Education was ten pages long.²³ Two of the three concurrences in Dobbs were longer than the Court’s landmark decision in Brown. The Roberts Court, it seems, has a writing addiction.

Dobbs underscores the Roberts Court’s legal clutter problem. It seems everyone wants to have a say. In far too many cases, the Justices appear willing to go it alone to add their individual perspective even when no other Justice lends their support.²⁴ This essay argues that the Justices need to focus more on decision making and less on individualized decision writing. The Justices owe the public clarity. Rather than clarity, the modern Justices seem inclined to chart their own paths and build an individualized brand.²⁵ This is seen in the increasing number of Justices writing memoirs shortly after confirmation,²⁶ teaching during the summers,²⁷ and speaking at conferences to friendly audiences who cheer their presence.²⁸ And while there is growing displeasure with the Court and its members for their outside activities,²⁹ this article’s focus is on the damaging role of concurring opinions. Concurring opinions are symptomatic of a larger problem—inaccessible legal writing. The Roberts Court, or at least its Justices, should evaluate the value of concurring opinions at a time when the Supreme Court’s institutional image is at an all-time low.³⁰ Self-restraint in avoiding legal clutter may help the Court regain societal trust and institutional credibility.³¹ Our country is best served by one Court, not nine individual Justices.

I. NCAA v. Alston—One Justice Goes Rogue

On June 21, 2021, the Supreme Court issued a unanimous opinion in NCAA v. Alston.³² All nine Justices agreed that the NCAA violated antitrust rules by limiting student athletes to “cost-of-attendance” benefits for participating in college sports.³³ The decision was expected after student athletes spent years litigating the NCAA’s amateurism rules.³⁴ The unexpected issue was Justice Kavanaugh’s five-page concurrence.³⁵ No other Justice joined his opinion. In what has become an increasing common acknowledgement of separate opinion writing, the Court’s Syllabus ends with the following notation: “Gorsuch, J., delivered the opinion for a unanimous Court. Kavanaugh, J., filed a concurring opinion.”³⁶ In other words, one Justice went rogue.

The Alston opinion is forty-five pages long.³⁷ That seems verbose for a unanimous opinion on a rather straightforward issue. Recall that Brown v. Board of Education was only ten pages long. The Roberts Court is the wordiest, yet least productive, Court in the modern era.³⁸ Averaging less than eighty cases per Term—less than seventy over the last decade—the Court writes lengthy, complex opinions with Justices investing far too much energy into individual opinions.³⁹ This approach, issuing long and fractured opinions, means the law is less accessible to ordinary people.⁴⁰ And, despite Alston’s straightforward holding, much of the press coverage centered on Justice Kavanaugh’s unnecessary legal aside.⁴¹

Justice Kavanagh’s concurrence begins, ironically, noting that he joins “the Court’s excellent opinion in full.”⁴² That agreement should have been sufficient to avoid drafting a separate opinion. When a colleague’s work is admittedly “excellent,” what is left to add? What motivated Justice Kavanaugh to write? In his words, he explains that he is writing not on the issue then pending before the Court. Rather, he “add[s] this concurring opinion to underscore that the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws”—rules that were neither briefed nor argued in this appeal.⁴³ The entire purpose of Justice Kavanaugh’s concurring opinion in Alston is to discuss issues that were not before the Court. His concurring opinion contains dicta that is nothing more than an advisory opinion inviting other student-athletes to sue the NCAA.⁴⁴ Justice Kavanaugh’s concurrence makes for great sound bites but shows little judicial restraint. It is veiled judicial activism. This opinion fully illustrates what Professor Suzanna Sherry criticized as our “Kardashian Court.”⁴⁵ Modern Justices write to increase their profile at the cost of clarity and conciseness. Legal clutter.

Justice Kavanaugh spends five unnecessary pages explaining how he will decide the next antitrust issue relating to the NCAA’s rules on student compensation.⁴⁶ This explanation comes before the issue is even briefed. Kavanaugh’s concurrence is the textbook definition of dicta and feels like an advisory opinion advocating for change.⁴⁷ He acknowledges that Alston “does not address the legality of the NCAA’s remaining compensation rules.”⁴⁸ That is correct. And that acknowledgement should have ended any discussion on unbriefed, un-litigated matters. It didn’t.

Perhaps the most obvious distinction between Alston’s majority opinion and Justice Kavanaugh’s concurrence is that the majority’s decision was bound by Article III to decide only the case and controversy before it.⁴⁹ Majority opinions generally do not invite further litigation or show the Court’s hand on how it will rule on future issues.⁵⁰ Concurrences do not appear to be equally constrained. The point of Justice Kavanaugh’s concurrence was to move beyond the facts of the case and appeal to future litigants. He essentially provided a road map for what one Justice perceives will be the winning approach for a different, unpresented issue. This separate opinion might be helpful, if at all, for future litigants in some future case. Otherwise, these five pages took unnecessary time and energy from its readers.⁵¹

The most troubling aspect of Justice Kavanaugh’s concurrence is that it generated more attention than Justice Gorsuch’s unanimous majority opinion.⁵² The Roberts Court reaches true consensus far less often than predecessor courts, with more individual opinions being written by Justices agreeing on the result.⁵³ Rarely is anything gained by writing separately. This act of going it alone when the rest of the Court was united is further proof that modern Justices prefer to write decisions rather than decide cases. Justice Kavanaugh’s unnecessary legal monologue wastes important judicial resources. This writing squanders lawyers’ and law students’ scarce time without adding corresponding value. The concurrence portrays legal clutter, not legal value.

II. Dobbs v. Jackson Women’s Health Organization—More Justices Go Rogue

Dobbs was destined to be a controversial opinion. Cases that overturn settled precedent remind society that Supreme Court membership can, rather quickly, change settled expectations.⁵⁴ Even after the Dobbs opinion leaked, the official decision caused shock waves in the United States and around the globe. Its publication was an event unto itself. So why did three Justices in the majority feel the need to write individually, adding length and, in the case of Justice Thomas, controversy to an already seismic event? Chief Justice Roberts, Justice Kavanaugh, and Justice Thomas each published their individual thoughts in concurring opinions. Yet it was Justice Thomas’s opinion that garnered the most attention, in some ways even more attention than Justice Alito’s lengthy majority opinion.

No other Justices joined the concurring Justices’ separate opinions.⁵⁵ Chief Justice Roberts, writing for himself, published a twelve-page concurrence.⁵⁶ Justice Kavanaugh, also writing for himself, published a twelve-page concurrence.⁵⁷ What justifies adding one’s individual voice when no other colleague agrees to sign on to your legal monologue? Justice Kavanaugh’s Dobbs concurrence aptly illustrates the problem: solo concurrences often fail to add valuable contribution to the law. Much like his approach in Alston, Justice Kavanaugh writes his Dobbs concurrence “to explain my additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.”⁵⁸ In other words, this concurrence is what Justice Kavanaugh would have presented had his opinion garnered another four votes. But it didn’t. In fact, it didn’t get any other votes even though both Justices Roberts and Thomas also felt the need to write separately. Apparently, these Justices wanted to have their individual perspectives recorded. And nothing, outside of individual restraint, stops Justices from publishing individual opinions that have no other colleagues’ support.

It is hard to find institutional value in Justice Kavanaugh’s concurrence. His first several paragraphs are dedicated to the obvious point, stated in nearly every abortion decision since Roe—that abortion presents “a profoundly difficult and contentious issue.”⁵⁹ He tries to characterize both sides of the debate and then states the oft repeated dilemma that, “[w]hen it comes to abortion, one interest must prevail over the other at any given point in a pregnancy.”⁶⁰ Justice Kavanaugh then suggests that the Constitution and Court must be “neutral” on the issue.⁶¹ Even his discussion of stare decisis is unnecessary. Dobbs overruled a long-standing case. And Justice Alito’s majority decision explained the reasons for doing so, including the appreciation for stare decisis.⁶² This concurrence illustrates all that is wrong with concurring opinions. It adds nothing meaningful. It adds length without substance. It doesn’t change the outcome or even seek to change the reasoning. It is simply an individual opinion that failed to secure four other votes. It epitomizes legal clutter.

Justice Thomas’s concurrence, in contrast, moves beyond mere legal clutter and achieves more of a mischief-maker status.⁶³ Much like Justice Kavanaugh’s lone concurrence in Alston, Justice Thomas’s Dobbs concurrence starts by admitting the litigants did not ask the Court to do what the writing Justice is about to recommend.⁶⁴ It is almost as if certain concurrences should now come with a disclaimer: “warning—you are about to read an advisory opinion written by an individual Justice.” Thomas’s seven-page concurrence seeks to push Dobbs’ impact significantly past that envisioned by the majority. He unequivocally declares: “[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”⁶⁵

And just like that, a concurring opinion written by a single Justice drew an oversized reaction.⁶⁶ Justice Thomas opined on a non-presented issue to tell us what he thinks the law should be, not what the law is now. His concurrence invites future litigants to take his legal approach and present his argument more directly to the Court than the Dobbs’ litigants did. Lest observers think this approach is new or anomalous, this is precisely the approach Justice Thomas used to invite litigants to expand Second Amendment rights in his Printz concurrence.⁶⁷ Printz, a case about federalism, saw Justice Thomas concur to invite future litigants to consider raising an individual rights argument under the Second Amendment.⁶⁸ That advice was not lost on litigants.⁶⁹ And as the Court’s membership changed, Printz stands as one of the few instances where an otherwise irrelevant concurrence became a roadmap to a new line of legal reasoning. The advisory concurrence succeeded.

Justice Thomas’s Printz concurrence was not joined by any other Justice.⁷⁰ It is only three pages long. Similar to his Dobbs concurrence, Justice Thomas wrote primarily to direct recommended legal changes for future litigants.⁷¹ Justice Thomas acknowledged that because the parties did not raise a Second Amendment argument to a personal right to keep and bear arms, “we need not consider it here.”⁷² But rather than stop where the parties stopped, he continued with prescient advice:

Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” In the meantime, I join the Court’s opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.⁷³

Justice Thomas has thus witnessed that rare measure of success in placing litigation strategies in a rogue concurrence that, years later, bear fruit. This advisory-opinion style concurrence goes beyond Article III’s textual restraint for cases and controversies in a mischievous way.⁷⁴ These seemingly benign legal monologues are worse than legal clutter. They reach beyond the facts and issues in each dispute. And, in Justice Thomas’s case, his solo concurrence offers a legal invitation from a single Justice to generate litigation and change the law. It oversteps the usual role of the Supreme Court by transforming individual Justices into partisan advisors on legal issues. In this way, concurrences operate as judicial activism seeking to motivate outside litigators to help a Justice land the right case to fit their desired constitutional views. This, like the legal clutter concurrence, has no place in an Article III court.

III. Concurring Opinions versus Dissenting Opinions

Concurring opinions are often unnecessary because they rarely become majority opinions.⁷⁵ They do not seek an alternate outcome or, necessarily, provide alternate reasoning. Concurring opinions are legal asides that add individualized perspective on the Court’s opinion. The voice of one, or a few, seek to comment on what the majority actually did. This lone Justice, or small group of Justices, may even have the gumption to tell the world what the majority opinion actually meant, suggesting that the concurring Justice views the majority opinion as incomplete or poorly written. It is the ultimate Monday-morning quarterbacking by the back-up quarterback. Imagine the locker room conversation going like this: “Yes, we won the game. But if I had been playing, this is what I would have done to win the game we just won.” At their core, concurring opinions are draft opinions that were not good enough to command a majority. They are back-up opinions. And, yet, far too many judges and journalists recite lines—or reasoning—from concurring opinions as if they were the majority.

In contrast, dissenting opinions have some inherent value. Dissenting opinions call into question the majority’s outcome. Dissenting opinions call on the majority to draft a better opinion by challenging the Court’s decision and, often, its reasoning. These decisions explain the Justices’ disagreement with the majority and assure litigants that the case was thoroughly reviewed. On occasion, dissenting opinions will become the majority when the Court changes personnel.⁷⁶ So while dissenting opinions may shed light on the two sides of a legal debate, concurring opinions rarely do. Concurring opinions are the “yes, but” opinion rather than the “no, and here’s why” opinion.

Both concurring and dissenting opinions add length to the Court’s published decision. They make the reader work harder to find out what the Court did. They can make it difficult to understand the basic holding and render a decision inaccessible to the general public. Thanks to technology, the average American can now access every Supreme Court opinion—often within minutes of a decision being issued. But that access doesn’t ensure understanding. Today, trying to figure out why same-sex marriage is a constitutionally protected right⁷⁷ or how the Second Amendment confers an individual right to possess a handgun in the home for self-defense⁷⁸ requires laboring through hundreds of pages of individually written, separately published opinions. The Court no longer has one voice. The current Supreme Court has nine individual voices.

The Court has unfortunately wandered far from the time when Justices understood the importance of a Court opinion and have returned to the era of seriatim opinions. Every Justice appears willing to speak solely for themselves, despite the role that one Supreme Court plays in our nation. Each Justice can, and often does, comment individually about their views on a case. But individual views do not create a decision, much less precedent. The Court would be well advised to reconsider its individual writing addiction. Regardless of the Justice, the only relevant decision is the binding decision rendered by five Justices. The modern trend of individual Justices writing to frame and influence future litigation is a new, and disturbing, form of judicial activism.⁷⁹ Article III’s text only permits the Justices to render decisions on actual cases and controversies.⁸⁰ When any member of the Court exceeds that power, they have exceeded their Constitutional mandate.⁸¹ The Court’s writing—and not merely its decisions—should strive to align with the Founder’s design.⁸² Judicial restraint is best observed in restrained writing.⁸³

IV. Stop with the Legal Clutter—Stop with the Mischief Making

There is an important distinction between writing opinions and publishing opinions. The Supreme Court is expected to issue legal opinions—”to say what the law is.”⁸⁴ Increasingly, Americans believe the Court is a group of opinionated individuals, often politically motivated, that decides cases based on personal ideology.⁸⁵ The perception of the Court is that, increasingly, Justices may not care as much about the institutional value of the Supreme Court as much as their own individual brands. Modern Justices invest their time in speaking at outside events, writing personal memoirs, and publishing individual opinions. While past Justices often circulated concurring opinions, they regularly withheld these opinions from publication.⁸⁶ Those Justices understood that one individual’s thoughts might be better left unpublished.⁸⁷ There was more humility, more institutional allegiance. This essay does not begrudge the drafting of a concurring opinion. The Justices should point out—during the drafting process—any perceived weakness in the Court’s majority opinion. But this essay does call for careful consideration before publishing concurring opinions.

Supreme Court Justices are understandably busy rendering decisions in the country’s most difficult legal disputes.⁸⁸ The Court receives roughly 5,000 certiorari petitions each year.⁸⁹ And someone—or a group of individuals—must evaluate these petitions to distill down the most pressing and worthy cases to be heard. It is important to note that it is not usually the Justices reading these petitions. Instead, most Justices rely on their law clerks or the “cert pool” to draft brief memos on each case and make a recommendation.⁹⁰ Unlike the early Supreme Court Justices that rode circuit⁹¹ and worked without law clerks, printers, and computerized research tools, these Justices have all the advantages that modern technology and the cert pool provides.⁹² The increase in cert petitions is met with better resources, faster technology, and a lighter decisional load. The current Court hears less than eighty cases each Term.⁹³ The Justices have more resources and, objectively speaking, are doing less work.⁹⁴

So, what are the Justices doing with all the time that their predecessors invested in reading, evaluating, and deciding cases? When they are not traveling, teaching, speaking, or writing books, the Justices appear to be writing lengthy, largely irrelevant, concurring opinions. The opportunity costs are wasteful on both an individual and systemic level. Why not hear more cases? Why are the Justices themselves not reading through the cert petitions and, instead, delegating critical case selection to second- or third-year lawyers? If the Justices were truly overburdened, they would not be drafting prolix majority opinions and publishing separate opinions in two-thirds of its decided cases. If the Justices prefer to invest time in outside endeavors, that is fine.⁹⁵ But the practice of filling time inside the court with publishing unnecessary concurring opinions needs to stop.

The Supreme Court is entrusted with saying what the law is. The Court’s legal opinions should follow the simple A, B, Cs of good legal writing—accuracy, brevity, and clarity. Yet modern Supreme Court opinions are longer, more fragmented, and difficult even for lawyers to follow. One of the reasons that Justice Alito’s Dobbs opinion mushroomed to over a hundred pages is that he found himself addressing the arguments raised by the concurrences and dissents. This is a recurring theme with the Roberts Court. Each Justice who publishes an opinion seeks to point out flaws in the other Justices’ opinions. The Court appears caught in a vicious cycle of overwriting and publishing individual disagreements among the Justices. Justice Roberts surely appreciates that this approach is causing institutional harm and reputational damage. The Court seems, from the outside looking in, fractured. Even members of the majority can’t seem to go along with important decisions without adding their own commentary. These “yes, but” opinions are unmitigated legal clutter and mischief makers.

Justice Kavanaugh’s Alston concurrence overshadowed an otherwise unanimous opinion. He used five pages to present his individual opinion inviting new litigation.⁹⁶ Justice Thomas’s Dobbs concurrence unnecessarily threw additional kerosene on a case that repudiated half a century of settled precedent.⁹⁷ Justice Thomas’s concurrence asks the Court to go further than simply overturning Roe.⁹⁸ He—but apparently, he alone—wants to dismantle the entire line of privacy cases.⁹⁹ These two concurrences, published by members of a 6–3 conservative majority, are unhelpful. They add length without adding value. They urge the majority to go further—and beyond the facts of a given case. They are advisory opinions disguised as concurrences. They cause unnecessary confusion or, worse still, raise concern that the Court is willing to go further and faster than need be. These opinions wreak havoc on a sacred institution at a fragile time. Concurring opinions are the new judicial activism.

Justice Roberts wants the public to be more respectful of a Court that is creating damaging new norms.¹⁰⁰ The Roberts Court issues fewer opinions than its predecessors.¹⁰¹ It publishes more individual opinions than its predecessors.¹⁰² The Robert’s Court is willing to eschew precedent in much the same way the 1960s Warren Court did.¹⁰³ And, through individual concurring opinions, we are witnessing a new form of judicial activism—individually published advisory opinions inviting future litigation. While the Warren Court understood the importance of unanimity for the sake of institutional integrity and the good of the country,¹⁰⁴ the Roberts Court seemingly fails to appreciate that a divided Supreme Court in a divided nation is a recipe for disaster. The problem may not be with the divided nation. The problem may be within the Court itself.

There is little institutional value in a majority opinion followed by multiple “yes, but” opinions. The Court should return to the practice of drafting clear, understandable “for the Court” opinions. It is strange that at a time when the Justices’ writings are more physically accessible than ever before—all one needs is a smart phone or iPad—their written work product is becoming less accessible in the ways that matter most. Opinions are too long, too complicated, and require advanced legal training to sift through multiple individual decisions that may, or may not, prove relevant. It is as if the Court is out of touch with the rest of the world. Now that everyone can immediately access important legal decisions, those decisions are being written in a fashion that is incomprehensible to the average person. The fragmented, individualized approach to decision making characterizing the Roberts Court leaves us drowning in legal clutter.

It is time for the Court to invest more time into deciding actual cases and less time writing and responding to individual concurring opinions. The Court plays an instrumental role in our society. It is tasked with deciding the country’s most important legal questions. It is filled with the country’s greatest legal minds. But this Court no longer confines itself to decisions. Its members go beyond their Article III mandate to decide cases and controversies. The members of this Court appear to be focused on individual brands and individualized attention. Concurring opinions epitomize individuality at the cost of clarity. It is time to stop with the individual opinions. It is time to stop with the legal clutter.

Category: Forum

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation

Share this article