The Politics of Dissents and Concurrences on the U.S. Supreme Court

Abstract

Why do justices author or join separate opinions? Most attempts to address the dynamics of concurrence and dissent focus on aggregate patterns across time or courts. In contrast, we explain why an individual justice chooses to author or join a separate opinion. We argue that separate opinions result from justices' pursuit of their policy preferences within both strategic and institutional constraints. Using data from the Burger Court (1969 to 1985 terms), we estimate a multinomial logit model to test the influence of these factors on justices' decisions to join or author a regular concurrence, a special concurrence, or a dissent, as opposed to joining the majority opinion. Our results show that this choice reflects the justices' conditional pursuit of their policy preferences. We also disentangle the decision to join or author separate opinions, and we find that the latter decision is also influenced by the time remaining in the Court's term.