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Justice William Brennan’s legacy is inextricably tied to his role as “the playmaker” of the Warren court. Applying the “rule of five” – that five votes constitute a majority on the court – Brennan wrote landmark Supreme Court opinions advancing civil rights and civil liberties during Earl Warren’s tenure as chief justice and then cobbled together majorities to protect those developments after Warren Burger and William Rehnquist succeeded Warren.
While Brennan is known for his victories, decades before, John Marshall Harlan achieved greatness in defeat. His dissenting opinions in the late 19th century, most notably in Plessy v. Ferguson, led him to be known as “The Great Dissenter.” Although writing alone in his time, his views were vindicated generations later.
But the eras of “the playmaker” and the great dissenter may be over. Nowadays, with individual justices writing for themselves the norm rather than the exception, distinction may be earned, instead, through concurring opinions.
Consider Justice Brett Kavanaugh. Having completed his eighth term on the Supreme Court, Kavanaugh, along with Chief Justice John Roberts and Justice Amy Coney Barrett, is a member of the court’s center bloc. He has also been in the majority a striking amount of the time: This term, he tied with Roberts for being in the majority most often at 95%, and the term before was only slightly behind the chief at 92%.
But unlike Roberts, who rarely pens his own concurrences or dissents, Kavanaugh may be best-known for his concurring opinions. What is the reasoning behind these? In my view, Kavanaugh’s concurrences can be broken into three separate, albeit overlapping, types. First, as Kavanaugh himself has said, he writes concurrences to show his respect for the losing party and the arguments it presented. Second, he often writes to explain the court’s opinion – that is, to educate the public. Finally, he sometimes writes to set out his views on issues related to those addressed by the court, perhaps in the hope that his concurrence will one day become the law. In doing so, I think these concurrences not only tell us a good deal about Kavanaugh but also the current court.
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Let us begin with Trump v. Barbara, the birthright citizenship case decided just this term. True to form, Kavanaugh straddled the middle on birthright citizenship. On the one hand, he agreed with the majority that President Donald Trump’s executive order limiting the scope of birthright citizenship violated a federal statute. On the other hand, he agreed with the dissenters that the order did not violate the 14th Amendment of the Constitution.
In Kavanaugh’s view, the Supreme Court’s prior understanding of birthright citizenship informs federal law today. However, Kavanaugh also opined that Congress could pass a law adopting the restrictions set out in the president’s order. It was quintessential Kavanaugh, following a middle path and setting out detailed thoughts on the next case that could come before the court.
But alongside this was another reason for Kavanaugh’s opinion: to show “respect.” Indeed, in Barbara, he employs the term “respectful” or “respectfully” more than any other dissenting justice – four times, as compared to two by Justice Clarence Thomas (who also includes the phrase “due respect” when disagreeing with the majority’s “historical account” of the citizenship clause of the 14th Amendment) and once by Justice Samuel Alito.
In 2024, during a visit at Catholic Law, Kavanaugh was explicit that sometimes he writes a concurring opinion to “show respect for the side I’m disagreeing with.” He elaborated:
I think it’s really important to tell the losing party or the party you disagree with, why, and to explain it carefully and to show some recognition of their interest in the issue and do the best you can. They’re still not going to like it, but it turns out, . . . in my experience in all these years, in various government entities[,] . . . that losing when you feel like you were respected, enhances confidence in the institution.
Perhaps the most prominent example of Kavanaugh expressing respectful disagreement in a concurrence came in 2022, in a case where passions were especially high. In Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and held there was no federal constitutional right to an abortion, Kavanaugh acknowledged the “irreconcilable conflict between the interests of a pregnant woman who seeks an abortion and the interests in protecting fetal life” and reiterated his “respect” for advocates on both sides of the issue. This diplomatic approach contrasted markedly with the slash-and-burn tone of Alito’s majority opinion.
Which brings us to another reason for the Kavanaugh concurrence: to educate those trying to understand the court’s decisions – and to make clear that the court’s holding may not be as radical as its opponents fear. In Dobbs, for example, Kavanaugh opined that a “State” may not “bar a resident … from traveling to another State to obtain an abortion,” or “impose liability or punishment for an abortion that occurred before today’s decision takes effect.”
Similarly, in New York State Rifle & Pistol Association v. Bruen, the most important Second Amendment case of the decade, Kavanaugh wrote a concurrence joined by Roberts that made clear their view of the limited holding in the case, in which the court struck down New York’s law preventing the carrying of concealed firearms. “The Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense,” Kavanaugh wrote. “In particular, the Court’s decision does not affect the existing licensing regimes—known as ‘shall-issue’ regimes—that are employed in 43 States.”
Sometimes, when writing to explain the court’s opinion, Kavanaugh’s concurrence goes from stating what the law is to expressing his views on what the law should be. In NCAA v. Alston, the Supreme Court upheld a federal district court’s decision that National Collegiate Athletic Association rules limiting education-related compensation violated federal antitrust law.
Though no justice dissented, Kavanaugh wrote separately to explain why he believed that the NCAA’s remaining rules restricting non-education-related compensation – which had been challenged in the district court but not appealed in the Supreme Court – raised serious antitrust concerns as well. Kavanaugh stated, “if it turns out that some or all of the NCAA’s remaining compensation rules violate the antitrust laws, some difficult policy and practical questions would undoubtedly ensue” and suggested that they could be resolved through legislation or negotiation rather than litigation. (In early 2023 while speaking at Notre Dame Law School Kavanaugh said that his concurrence in Alston was “at the top of my list” when asked about his favorite opinions.)
Similarly, in Trump v. CASA, Inc., the birthright citizenship order’s first appearance before the Supreme Court, the majority essentially invalidated the use of “universal injunctions” as a remedial tool. Barrett’s majority opinion raised questions as to how litigation over executive branch policies and orders would now work.
Kavanaugh wrote a concurrence to explain that class actions and certain cases under the Administrative Procedure Act would still allow plaintiffs to seek and district courts to award “preliminary injunctive relief” that may apply “nationwide.” In addition, he recognized the need, at times, for “a nationally uniform answer on whether a major new” federal law or executive order “can be enforced throughout the United States during” the “interim period until its legality is finally decided on the merits.”
In making this point, Kavanaugh also offered a justification for the court’s controversial emergency docket and how it should be understood moving forward. Aware of district courts’ need for a definitive, albeit temporary, legal determination when plaintiffs seek to enjoin enforcement of a federal law or executive order, Kavanaugh enlisted the Supreme Court to provide that answer via its emergency orders. And he expressed confidence in the court’s capacity to handle any increase on litigation on this docket, insisting that deciding “those applications … is a critical part of our job.”
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Kavanaugh’s concurrences – or concurrences in general – are not without their critics. Professor Meg Penrose has argued that multiple opinions create clutter and obscure rather than clarify the holding of the majority opinion. As for Kavanaugh’s own concurrences, certain critics have argued that these amount to an advisory opinion in which he reaches “out to decide the legality of … other rules … not presented in th[e] case.” As Professor Josh Blackman has contended in connection with Alston, there is “nothing restrained or minimalist about this approach.” And writing in The New Republic, Matt Ford criticized Kavanaugh for “failing miserably” to follow the principle of constitutional avoidance – “where judges avoid answering constitutional questions if they can decide a case on other grounds” – in Barbara.
Perhaps most pointedly, Kavanaugh’s concurrences, even when attempting to educate the public, have been singled out – at least in one instance – by his fellow justices. In Noem v. Vasquez Perdomo, in response to the government’s emergency request, the court stayed a district court’s injunction barring immigration agents from considering physical appearance and language use, among other factors, when conducting immigration stops. The court’s order granting the stay consisted of a single paragraph.
Kavanaugh wrote a 10-page concurrence, explaining his views on numerous issues. In doing so, he described such immigration stops as “typically brief” and stated that, under federal law, “apparent ethnicity” can be a “relevant factor when considered along with other salient factors” in justifying a federal agent’s immigration stop.
The court’s ruling prompted not only a forceful dissent by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, but, remarkably, personal criticism of Kavanaugh by Sotomayor during an appearance at the University of Kansas Law School months later. As recounted in a Bloomberg news article, although she did not identify Kavanaugh by name, Sotomayor referenced Vasquez Perdomo and criticized him “for failing to grasp the real-world effects of an unsigned order last year that allowed immigration enforcement sweeps in Los Angeles to resume.”
Sotomayor went on to state: “This is from a man whose parents were professionals. And probably doesn’t really know any person who works by the hour.” The news article described Kavanaugh’s writing that immigration stops are “typically brief” then noted Sotomayor’s criticism that even short detentions may have significant “financial consequences” for hourly workers. Sotomayor subsequently apologized for her personal criticism of Kavanaugh. The pejorative phrase “Kavanaugh stops” for such encounters continues to be used.
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So why does he do it?
I would contend that Kavanaugh’s concurrences speak to several aspects of his jurisprudence. First, because Kavanaugh so often votes with Roberts, and because Roberts so often assigns himself the majority opinion in the court’s most high-profile cases, writing a concurring opinion is sometimes the only way in which Kavanaugh can express his views on the court.
Kavanaugh’s concurrences also serve as a way for the justice to try and tone down some of the heat surrounding the Supreme Court. As noted, one of the keywords for Kavanaugh is “respect” – of the arguments made by the advocates, the opinions of the justices who disagree with him, and the institutional demands of and on the legal system. Before becoming a federal judge, among other things, Kavanaugh clerked for Justice Anthony Kennedy – perhaps the most gracious justice of his era – and served as staff secretary to President George W. Bush, which involved him in what The Washington Post described as “the highest levels of the nation’s political machinery.” Those experiences seem to have inculcated in him the importance of speaking and writing respectfully.
Third, and relatedly, like Roberts, Kavanaugh seems sensitive to the court’s reputation. Though Kavanaugh went further than Roberts in voting to overrule Roe, his concurrence in Dobbs sought to reassure the public that abortion still would be legal and fully available in those states that allowed it. His concurrence in Bruen, joined by Roberts, reads similarly, stating that the court’s holding was limited. While neither decision can be described as incrementalist, Kavanaugh’s opinions sought to temper the court’s rulings – almost certainly in an effort to protect its institutional legitimacy.
But that is not the whole story. While Kavanaugh has sought to moderate some of its controversial decisions, he has also embraced the current court’s commitment to judicial supremacy, voting with the majority to establish more demanding standards for Congress to authorize administrative agencies to address “major questions” of “vast economic and political significance,” gut the Voting Rights Act, and eliminate Congress’ authority to insulate agency heads from removal.
Critics of this approach assert that, in its insistence on having the final say on what the law does and does not permit, the court is arrogating for itself policy decisions that should be made by Congress and the president. Furthermore, skeptics could say that Kavanaugh is trying to play it both ways – joining the court’s sharp tack to the right while positioning himself as a moderate, or at least a moderating influence, to defuse the criticism attendant to its revision of certain fundamental legal principles.
The contention that Kavanaugh is employing such strategy in his concurrences surely has some truth to it, but it seems overly simplistic. To see this, let’s compare him with Thomas. More than 35 years ago, Thomas joined the Supreme Court after a brutal confirmation fight. As a justice, Thomas has been consistently dogmatic and combative in his written opinions and speeches, relentlessly pushing the court to be more conservative and rejecting opportunities to find common ground with liberal justices.
In 2018, Kavanaugh became a justice following a similarly excruciating confirmation battle. After testifying before the Senate, Kavanaugh admitted that he “might have been too emotional at times” during his testimony. Following his confirmation, Kavanaugh has opted for an entirely different path than Thomas. Kavanaugh’s concurrences demonstrate this approach: to move the law in his desired direction from the middle of the court while maintaining its institutional legitimacy. Of course, whether he is successful in doing so is another matter entirely.
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