{"id":461,"date":"2026-07-30T13:42:12","date_gmt":"2026-07-30T13:42:12","guid":{"rendered":"https:\/\/americanservicereview.com\/?p=461"},"modified":"2026-07-30T13:42:12","modified_gmt":"2026-07-30T13:42:12","slug":"justice-kavanaugh-the-great-concurrer-of-the-roberts-court","status":"publish","type":"post","link":"https:\/\/americanservicereview.com\/?p=461","title":{"rendered":"Justice Kavanaugh: the great concurrer of the Roberts court?"},"content":{"rendered":"
\n

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not\u00a0necessarily\u00a0reflect the opinions of SCOTUSblog or its staff.<\/em><\/p>\n

Read more Trump indicates that he will bring Hillary Clinton case to SCOTUS<\/a><\/p>\n

Justice William Brennan\u2019s legacy is inextricably tied to his role as \u201cthe playmaker\u201d of the Warren court. Applying the \u201crule of five\u201d \u2013 that five votes constitute a majority on the court \u2013 Brennan wrote landmark Supreme Court opinions advancing civil rights and civil liberties during Earl Warren\u2019s tenure as chief justice and then cobbled together majorities to protect those developments after Warren Burger and William Rehnquist succeeded Warren.<\/p>\n

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<\/em>, led him to be known as \u201cThe Great Dissenter.\u201d Although writing alone in his time, his views were vindicated generations later.<\/p>\n

But the eras of \u201cthe playmaker\u201d 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.<\/p>\n

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\u2019s 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%.<\/p>\n

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\u2019s 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\u2019s opinion \u2013 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.<\/p>\n

***<\/strong><\/p>\n

Let us begin with Trump v. Barbara<\/em>, 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\u2019s 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.<\/p>\n

In Kavanaugh\u2019s view, the Supreme Court\u2019s 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\u2019s order. It was quintessential Kavanaugh, following a middle path and setting out detailed thoughts on the next case that could come before the court.<\/p>\n

But alongside this was another reason for Kavanaugh\u2019s opinion: to show \u201crespect.\u201d Indeed, in Barbara<\/em>, he employs the term \u201crespectful\u201d or \u201crespectfully\u201d more than any other dissenting justice \u2013 four times, as compared to two by Justice Clarence Thomas (who also includes the phrase \u201cdue respect\u201d when disagreeing with the majority\u2019s \u201chistorical account\u201d of the citizenship clause of the 14th Amendment) and once by Justice Samuel Alito.<\/p>\n

In 2024, during a visit at Catholic Law, Kavanaugh was explicit that sometimes he writes a concurring opinion to \u201cshow respect for the side I\u2019m disagreeing with.\u201d He elaborated:<\/p>\n

I think it\u2019s 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\u2019re 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.<\/p><\/blockquote>\n

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\u2019s Health Organization<\/em>, which overruled Roe v. Wade<\/em> and held there was no federal constitutional right to an abortion, Kavanaugh acknowledged the \u201cirreconcilable conflict between the interests of a pregnant woman who seeks an abortion and the interests in protecting fetal life\u201d and reiterated his \u201crespect\u201d for advocates on both sides of the issue. This diplomatic approach contrasted markedly with the slash-and-burn tone of Alito\u2019s majority opinion.<\/p>\n

Which brings us to another reason for the Kavanaugh concurrence: to educate those trying to understand the court\u2019s decisions \u2013 and to make clear that the court\u2019s holding may not be as radical as its opponents fear. In Dobbs<\/em>, for example, Kavanaugh opined that a \u201cState\u201d may not \u201cbar a resident … from traveling to another State to obtain an abortion,\u201d or \u201cimpose liability or punishment for an abortion that occurred before today\u2019s decision takes effect.\u201d<\/p>\n

Similarly, in New York State Rifle & Pistol Association v. Bruen<\/em>, 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\u2019s law preventing the carrying of concealed firearms. \u201cThe Court\u2019s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense,\u201d Kavanaugh wrote. \u201cIn particular, the Court\u2019s decision does not affect the existing licensing regimes\u2014known as \u2018shall-issue\u2019 regimes\u2014that are employed in 43 States.\u201d<\/p>\n

Sometimes, when writing to explain the court\u2019s opinion, Kavanaugh\u2019s concurrence goes from stating what the law is to expressing his views on what the law should be. In NCAA v. Alston<\/em>, the Supreme Court upheld a federal district court\u2019s decision that National Collegiate Athletic Association rules limiting education-related compensation violated federal antitrust law.<\/p>\n

Though no justice dissented, Kavanaugh wrote separately to explain why he believed that the NCAA\u2019s remaining rules restricting non-education-related compensation \u2013 which had been challenged in the district court but not appealed in the Supreme Court \u2013 raised serious antitrust concerns as well. Kavanaugh stated, \u201cif it turns out that some or all of the NCAA\u2019s remaining compensation rules violate the antitrust laws, some difficult policy and practical questions would undoubtedly ensue\u201d 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<\/em> was \u201cat the top of my list\u201d when asked about his favorite opinions.)<\/p>\n

Similarly, in Trump v. CASA, Inc.<\/em>, the birthright citizenship order\u2019s first appearance before the Supreme Court, the majority essentially invalidated the use of \u201cuniversal injunctions\u201d as a remedial tool. Barrett\u2019s majority opinion raised questions as to how litigation over executive branch policies and orders would now work.<\/p>\n

Read more Trump asks Supreme Court to hear appeal of $83.3 million defamation verdict against him<\/a><\/p>\n

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 \u201cpreliminary injunctive relief\u201d that may apply \u201cnationwide.\u201d In addition, he recognized the need, at times, for \u201ca nationally uniform answer on whether a major new\u201d federal law or executive order \u201ccan be enforced throughout the United States during\u201d the \u201cinterim period until its legality is finally decided on the merits.\u201d<\/p>\n

In making this point, Kavanaugh also offered a justification for the court\u2019s controversial emergency docket and how it should be understood moving forward. Aware of district courts\u2019 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\u2019s capacity to handle any increase on litigation on this docket, insisting that deciding \u201cthose applications … is a critical part of our job.\u201d<\/p>\n

***<\/strong><\/p>\n

Kavanaugh\u2019s concurrences \u2013 or concurrences in general \u2013 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\u2019s own concurrences, certain critics have argued that these amount to an advisory opinion in which he reaches \u201cout to decide the legality of … other rules … not presented in th[e] case.\u201d As Professor Josh Blackman has contended in connection with Alston<\/em>, there is \u201cnothing restrained or minimalist about this approach.\u201d And writing in The New Republic, Matt Ford criticized Kavanaugh for \u201cfailing miserably\u201d to follow the principle of constitutional avoidance \u2013 \u201cwhere judges avoid answering constitutional questions if they can decide a case on other grounds\u201d \u2013 in Barbara<\/em>.<\/p>\n

Perhaps most pointedly, Kavanaugh\u2019s concurrences, even when attempting to educate the public, have been singled out \u2013 at least in one instance \u2013 by his fellow justices. In Noem v. Vasquez Perdomo<\/em>, in response to the government\u2019s emergency request, the court stayed a district court\u2019s injunction barring immigration agents from considering physical appearance and language use, among other factors, when conducting immigration stops. The court\u2019s order granting the stay consisted of a single paragraph.<\/p>\n

Kavanaugh wrote a 10-page concurrence, explaining his views on numerous issues. In doing so, he described such immigration stops as \u201ctypically brief\u201d and stated that, under federal law, \u201capparent ethnicity\u201d can be a \u201crelevant factor when considered along with other salient factors\u201d in justifying a federal agent\u2019s immigration stop.<\/p>\n

The court\u2019s 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 <\/em>and criticized him \u201cfor failing to grasp the real-world effects of an unsigned order last year that allowed immigration enforcement sweeps in Los Angeles to resume.\u201d<\/p>\n

Sotomayor went on to state: \u201cThis is from a man whose parents were professionals. And probably doesn\u2019t really know any person who works by the hour.\u201d The news article described Kavanaugh\u2019s writing that immigration stops are \u201ctypically brief\u201d then noted Sotomayor\u2019s criticism that even short detentions may have significant \u201cfinancial consequences\u201d for hourly workers. Sotomayor subsequently apologized for her personal criticism of Kavanaugh. The pejorative phrase \u201cKavanaugh stops\u201d for such encounters continues to be used.\u00a0<\/p>\n

***<\/strong><\/p>\n

So why does he do it?<\/p>\n

I would contend that Kavanaugh\u2019s 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\u2019s most high-profile cases, writing a concurring opinion is sometimes the only way in which Kavanaugh can express his views on the court.<\/p>\n

Kavanaugh\u2019s 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 \u201crespect\u201d \u2013 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 \u2013 perhaps the most gracious justice of his era \u2013 and served as staff secretary to President George W. Bush, which involved him in what The Washington Post described as \u201cthe highest levels of the nation\u2019s political machinery.\u201d Those experiences seem to have inculcated in him the importance of speaking and writing respectfully.<\/p>\n

Third, and relatedly, like Roberts, Kavanaugh seems sensitive to the court\u2019s reputation. Though Kavanaugh went further than Roberts in voting to overrule Roe<\/em>, his concurrence in Dobbs<\/em> sought to reassure the public that abortion still would be legal and fully available in those states that allowed it. His concurrence in Bruen<\/em>, joined by Roberts, reads similarly, stating that the court\u2019s holding was limited. While neither decision can be described as incrementalist, Kavanaugh\u2019s opinions sought to temper the court\u2019s rulings \u2013 almost certainly in an effort to protect its institutional legitimacy.<\/p>\n

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\u2019s commitment to judicial supremacy, voting with the majority to establish more demanding standards for Congress to authorize administrative agencies to address \u201cmajor questions\u201d of \u201cvast economic and political significance,\u201d gut the Voting Rights Act, and eliminate Congress\u2019 authority to insulate agency heads from removal.<\/p>\n

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 \u2013 joining the court\u2019s 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.<\/p>\n

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\u2019s 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.<\/p>\n

In 2018, Kavanaugh became a justice following a similarly excruciating confirmation battle. After testifying before the Senate, Kavanaugh admitted that he \u201cmight have been too emotional at times\u201d during his testimony. Following his confirmation, Kavanaugh has opted for an entirely different path than Thomas. Kavanaugh\u2019s 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.<\/p>\n

Read more The push to reduce the Supreme Court\u2019s power<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not\u00a0necessarily\u00a0reflect the opinions of SCOTUSblog or its staff. Read more Trump indicates that he will bring Hillary Clinton case to SCOTUS Justice William Brennan\u2019s legacy is inextricably tied to his role as \u201cthe playmaker\u201d of the Warren court. Applying the \u201crule […]<\/p>\n","protected":false},"author":1,"featured_media":460,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-461","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-commentary"],"yoast_head":"\nJustice Kavanaugh: the great concurrer of the Roberts court? - American Service Review<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/americanservicereview.com\/?p=461\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Justice Kavanaugh: the great concurrer of the Roberts court? - American Service Review\" \/>\n<meta property=\"og:description\" content=\"Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not\u00a0necessarily\u00a0reflect the opinions of SCOTUSblog or its staff. 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Read more Trump indicates that he will bring Hillary Clinton case to SCOTUS Justice William Brennan\u2019s legacy is inextricably tied to his role as \u201cthe playmaker\u201d of the Warren court. 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