The Rise of the Choral Court: Use of Concurrence in the Burger and Rehnquist Courts

Abstract

Justices’ goals when writing concurrences continue to elude scholars. This project extends Baum’s contention that justices’ goals are bifurcated. The authors argue that justices use concurrences as means to both speak about their legal policy preferences and win by being members of the majority voting coalition. An analysis of the Burger and Rehnquist Courts’ concurring behavior illustrates that members of the Court are both authoring and joining concurrences in ways previously undocumented. Specifically, justices have become comfortable not only authoring concurrences but regularly joining others’ separate opinions as well—a trend the authors call choral-Court decision making.