Title
Publication
Constitutional Commentary
Volume
31
Page
351
Year
2016
Abstract
The silent concurrence is a puzzling institutional practice given that the long understood benefits of separate opinion production require that they be written. Unfortunately, reasons for concurring silently are opaque by definition and as a result little progress has been made toward understanding this puzzling institutional practice. In this article, I leverage private papers from the Burger Court to explain why justices sometimes concur silently. These records indicate that myriad factors precipitate this practice, including time constraints, perceptions about case importance, reluctant vote switching, uncertainty about the proper disposition or legal rule, a desire to maintain voting consistency while withholding support for disfavored precedents, and bargaining failures over opinion language and scope.
Recommended Citation
Goelzhauser, Greg, "Silent Concurrences" (2016). Constitutional Commentary. 10.
https://scholarship.law.umn.edu/concomm/10
